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NATIONAL FAMILY FARM COALITION v. US EPA

No. 17-70810, No. 17-70817.

966 F.3d 893 (2020)

NATIONAL FAMILY FARM COALITION; Family Farm Defenders; Beyond Pesticides; Center for Biological Diversity; Center for Food Safety; Pesticide Action Network North America, Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; Andrew R. Wheeler, in his official capacity as Administrator, Respondents, Dow Agrosciences LLC, Respondent-Intervenor. Natural Resources Defense Council, Petitioner, v. Andrew R. Wheeler, in his official capacity as Administrator of the United States Environmental Protection Agency; U.S. Environmental Protection Agency, Respondents, Dow Agrosciences LLC, Respondent-Intervenor.

United States Court of Appeals, Ninth Circuit.

Submission Withdrawn May 30, 2019.

Resubmitted July 22, 2020 Portland, Oregon.

Filed July 22, 2020.

Attorney(s) appearing for the Case

George A. Kimbrell (argued), Amy Van Saun , and Sylvia Shih-Yau Wu , Center for Food Safety, Portland, Oregon; Paul H. Achitoff , Earthjustice, Honolulu, Hawaii; for Petitioners National Family Farm Coalition, Family Farm Defenders, Beyond Pesticides, Center for Biological Diversity, Center for Food Safety, and Pesticide Action Network North America.

Margaret T. Hsieh (argued), Mitchell S. Bernard , and Kaitlin Morrison , Natural Resources Defense Council, New York, New York; Peter J. DeMarco and Aaron Colangelo , Natural Resources Defense Council, Washington, D.C.; for Petitioner Natural Resources Defense Council.

J. Brett Grosko (argued), Senior Trial Attorney; Michele L. Walter , Trial Attorney; Jeffrey H. Wood , Acting Assistant Attorney General; Jonathan D. Brightbill , Principal Deputy Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Benjamin Wakefield and Michele Knorr , Pesticides & Toxics Substances Law Office, Office of General Counsel, United States Environmental Protection Agency, Washington, D.C.; for Respondents.

Kathleen M. Sullivan (argued), Quinn Emanuel Urquhart & Sullivan LLP, New York, New York; David B. Weinberg , Wiley Rein LLP, Washington, D.C.; Stanley H. Abramson and Donald C. McLean , Arent Fox LLP, Washington, D.C.; Christopher Landau and Archith Ramkumar , Quinn Emanuel Urquhart & Sullivan LLP, Washington, D.C.; Andrew P. March , Quinn Emanuel Urquhart & Sullivan LLP, Redwood Shores, California; for Respondent-Intervenor.

Kirsten L. Nathanson , David Y. Chung , and Amy B. Symonds , Crowell & Moring LLP, Washington, D.C., for Amicus Curiae CropLife America.

Matthew H. Lembke and Anna M. Manasco , Bradley Arant Boult Cummings LLP, Birmingham, Alabama; Bartholomew J. Kempf , Bradley Arant Boult Cummings LLP, Nashville, Tennessee; for Amici Curiae American Farm Bureau Federation, American Soybean Association, National Cotton Council of America, and National Corn Growers Association.

Dissent by Judge WATFORD

OPINION

Petitioners challenge EPA's decisions to register Enlist Duo—a pesticide designed to kill weeds on corn, soybean, and cotton fields—in 2014, 2015, and 2017. According to Petitioners, EPA's decisions violate FIFRA and the ESA. We grant one petition in part as to FIFRA, deny the other petition...

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