UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CENTER FOR FOOD SAFETY; No. 19-72109 CENTER FOR BIOLOGICAL DIVERSITY, EPA No. 62719-625

Petitioners, OPINION v. MICHAEL S. REGAN, in his official capacity as Administrator; U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondents, CORTEVA AGRISCIENCE LLC,

Respondent-Intervenor. 2 CENTER FOR FOOD SAFETY V. REGAN

POLLINATOR STEWARDSHIP No. 19-72280 COUNCIL; AMERICAN BEEKEEPING FEDERATION; JEFFERY S. EPA Nos. 62719-625 ANDERSON, 62719-623 62719-631 Petitioners,

v. MICHAEL S. REGAN, in his official capacity as Administrator; U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondents, CORTEVA AGRISCIENCE LLC,

Respondent-Intervenor.

On Petition for Review of an Order of the Environmental Protection Agency

Argued and Submitted January 19, 2022 Honolulu, Hawaii

Filed December 21, 2022 CENTER FOR FOOD SAFETY V. REGAN 3

Before: Diarmuid F. O’Scannlain, Eric D. Miller, and Kenneth K. Lee, Circuit Judges.

Opinion by Judge Lee; Partial Concurrence and Partial Dissent by Judge Miller

SUMMARY *

Pesticide / Environmental Protection Agency The panel granted in part and denied in part petitions for review brought by Center for Food Safety and Pollinator Stewardship Council challenging the 2019 amended registration of the pesticide sulfoxaflor, which was created by Dow Agrosciences LLC. A company seeking to register a pesticide must obtain approval from the Environmental Protection Agency (EPA), which in turn must comply with the Endangered Species Act (ESA), and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). In 2010, Dow submitted an application for sulfoxaflor. In January 2013, EPA announced and invited public comment for a proposed conditional registration at lower application rates with some mitigating measures. Less than seven months later, EPA decided to unconditionally register sulfoxaflor. In Pollinator Stewardship Council v. EPA (Pollinator I), 806 F.3d 520 (9th Cir. 2015), this court vacated the sulfoxaflor registration because of Dow’s flawed and limited data for * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 CENTER FOR FOOD SAFETY V. REGAN

honeybees. In 2016, EPA registered sulfoxaflor for limited use without the additional court-ordered studies. In 2019, in a surprise announcement, EPA unconditionally registered sulfoxaflor. The panel held that EPA violated the ESA’s mandate that it determine whether the pesticide may affect endangered or threatened species or their habitat, and (if so) consult other wildlife agencies to consider its impact on endangered species. Although EPA admitted it did not comply with the ESA, EPA alleged it lacked the resources to do so. The panel held that EPA cannot flout the will of Congress just because it contends it is too busy or understaffed. The panel further held that EPA’s repeated violations of the ESA undermined the political structure. The panel held that EPA failed to meet FIFRA’s notice and comment requirement because it did not allow the public to comment on Dow’s requested amendments to the 2016 registration to reinstate expanded usage of sulfoxaflor. EPA cannot rely upon Dow’s original application for sulfoxaflor to support the registration amendments. Because Dow requested, and EPA approved, “new uses” for sulfoxaflor, EPA should have solicited public comments. The panel, however, did not vacate the agency’s decision because a vacatur might end up harming the environment more an