NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 18 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CENTER FOR BIOLOGICAL DIVERSITY; No. 20-73146

CENTER FOR FOOD SAFETY,

EPA No. Petitioners, EPA-HQ-OPP-2018-0038-0040

v.

MEMORANDUM*

U.S. ENVIRONMENTAL PROTECTION

AGENCY,

Respondent, ______________________________

VALENT U.S.A. LLC,

Intervenor.

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

Argued and Submitted July 7, 2022 Portland, Oregon

Before: R. NELSON and LEE, Circuit Judges, and RAKOFF,** District Judge.

Petitioners Center for Biological Diversity (“CBD”) and Center for Food

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Safety challenge an order by the Environmental Protection Agency (“EPA”)

registering a new fungicide called inpyrfluxam.1 We have jurisdiction under 7

U.S.C. § 136n(b) and grant the petition in part, and remand to the EPA with

instructions.

Petitioners challenge the registration on various grounds, including EPA’s

failure to make an effects determination under § 7(a)(2) of the Endangered Species

Act and to consult with federal wildlife agencies. At oral argument, Petitioners

withdrew their request that the court vacate the registration and asked us to impose

on EPA a deadline to complete its effects determination and initiate consultation as

necessary. Intervenor Valent does not object to remand without vacatur or with a

deadline. EPA admits error and asks for a voluntary remand, without vacatur or a

deadline. EPA has represented to the court that it is on track to have a draft effects

determination by fall 2022 and a final effects determination by spring 2023.

We grant EPA’s request for a voluntary remand. We remand to EPA with a

deadline to complete its final effects determination for inpyrfluxam and

inpyrfluxam products and to initiate any required consultation with the wildlife

agencies by June 22, 2023.

The parties will bear their own costs.

1 CBD has associational standing, sufficient for the appeal to proceed. See Nat’l Fam. Farm Coal. v. EPA, 966 F.3d 893, 908 (9th Cir. 2020).

2

GRANTED IN PART AND REMANDED WITH INSTRUCTIONS.

3