Pollinator Stewardship Council v. U.S. Environmental Protection Agency

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

POLLINATOR STEWARDSHIP No. 13-72346

COUNCIL; AMERICAN HONEY

PRODUCERS ASSOCIATION;

NATIONAL HONEY BEE ADVISORY

BOARD; AMERICAN BEEKEEPING OPINION

FEDERATION; THOMAS R. SMITH;

BRET L. ADEE; JEFFERY S.

ANDERSON,

Petitioners,

v.

U.S. ENVIRONMENTAL PROTECTION

AGENCY; BOB PERCIASEPE, in his official capacity as acting administrator of the USEPA, Respondents,

DOW AGROSCIENCES LLC,

Respondent-Intervenor.

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

Argued and Submitted April 14, 2015—San Francisco, California

Filed September 10, 2015 Before: Mary M. Schroeder and N. Randy Smith, Circuit Judges and John A. Kronstadt,* District Judge.

Opinion by Judge Schroeder; Concurrence by Judge N.R. Smith

SUMMARY**

Federal Insecticide, Fungicide, and Rodenticide Act

The panel vacated the Environmental Protection Agency’s unconditional registration of sulfoxaflor, and remanded for the EPA to obtain further studies and data regarding the effects of sulfoxaflor on bees, as required by EPA regulations.

The Federal Insecticide, Fungicide, and…

concurring in the judgment:

I agree with the panel’s decision. The EPA’s unconditional registration of sulfox-aflor should be vacated, and the. case should be remanded to the EPA. I cannot say the EPA supported its decision with substantial evidence. However, I write separately to provide an alternate perspective.

FIFRA has its own standard of review. Under FIFRA, a reviewing court must sustain a pesticide registration if the registration “is supported by substantial evidence when considered on the record as a whole.” 7 U.S.C. § 136n(b). “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Nat. Res. Def. Council v. EPA, 735 F.3d 873, 877 (9th Cir.2013) (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.2009)). The standard is “relatively deferential to the agency factfinder,” but must still be “searching and careful, subjecting the agency’s decision to close judicial scrutiny.” Containerfreight Corp. v. United States, 752 F.2d 419, 422 (9th Cir.1985) (internal quotation marks omitted).

The substantial evidence standard affords an agency less…

Opinion by Judge SCHROEDER; Concurrence by Judge N.R. SMITH.

ORDER AND AMENDED OPINION

ORDER

Respondents’ petition for panel rehearing is GRANTED.

The Opinion filed September 10, 2015 is amended as follows:

On opinion page 522, replace the first sentence with:

On opinion page 522, replace the first sentence in the Background section with:

Petitioners’ motion for issuance of mandate is GRANTED. The mandate shall issue forthwith.

OPINION

The Federal Insecticide, Fungicide, and Rodenticide Act, known as FIFRA, prohibits the sale of pesticides that lack approval and registration by the Environmental Protection Agency (“EPA”). 7 U.S.C. § 136a(a). The EPA may deny an application for registration when “necessary to prevent unreasonable adverse effects on the environment.” Id. This case is a challenge to the EPA’s approval of insecticides containing sulfoxaflor, which initial studies showed were highly toxic to honey bees. Bees are essential to pollinate important crops and in recent years have been dying at alarming rates. Petitioners are commercial bee keepers and bee keeping organizations.

The EPA initially proposed to conditionally register sulfoxaflor and requested…