Center for Food Safety Moves for Vacatur of Fungicide Registration

Last Friday, the Center for Food Safety (Petitioner) filed a Motion for Summary Vacatur against the Environmental Protection Agency (EPA or Respondent) in the Ninth Circuit. Petitioner “… moves this Court to summarily reverse and vacate [ the Respondent’s]… interim registration of [fungicide] difenoconazole…” Petitioner alleges that Respondent’s interim registration violates both the Endangered Species Act (ESA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

Petitioner describes itself as a not-for-profit that, among other things, seeks to minimize the harmful effects of “industrial agriculture.”Petitioner’s original petition, filed in June, also names Michael S. Regan “in his official capacity as Administrator [of the EPA]” as a Respondent, though he is not specifically mentioned in the recent motion. Syngenta Crop Protection, LLC, producer of herbicides, insecticides and fungicides, has intervened in the proceeding and is noted as “Respondent-Intervenor” in the motion.

Petitioner argues that Respondent’s “flouting of its consultation duties [under the ESA] — for a fungicide that EPA knows causes harm to federally protected endangered species — is clear error warranting summary vacatur.” Among other failures to comply with the ESA, Petitioner alleges that Respondent did not consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, “Expert Agencies” under the ESA whose involvement was statutorily required.

In addition, Petitioner argues that Respondent’s “… decision to issue difenoconazole’s interim registration without critical studies on the fungicide’s potential harm to public health also warrants summary vacatur.” Petitioner alleges that Respondent “… issued its proposed registration without the critical information it requested twenty-two years ago on difenoconazole’s potential adverse public health effects.” (emphasis in original). “ Without these studies, EPA cannot support its interim registration decision with substantial evidence as FIFRA requires…”

Petitioner is represented by in-house counsel.