In Center for Food Safety v. Regan, No. 19-72109 (Dec. 21, 2022), the Ninth Circuit heard a challenge to the Environmental Protection Agency’s (EPA) registration of sulfoxaflor, a widely used insecticide, under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
In its briefing to the court, the EPA had conceded two legal errors. First, the agency admitted that it violated the Endangered Species Act’s (ESA) requirement to undertake certain steps to ensure their actions are not “likely to jeopardize” endangered or threatened species or “result in the destruction or adverse modification” of the “critical” habitat of such species. 16 U.S.C. § 1536(a)(2). Second, the agency “recognize[d]” that its regulatory explanation under FIFRA “could be more robust.” Having made these concessions, the EPA sought a remand without vacatur, to allow the agency to fix its professed legal errors.
A majority on the Ninth Circuit panel reluctantly agreed. Despite taking the EPA to task for its “apparent habit of ignoring” its statutory responsibilities, the split panel ultimately agreed to remand the sulfoxaflor registration “because a vacatur may end up harming the environment more and disrupting the agricultural industry.” Judge Eric Miller dissented on the remedial question, determining
that the agency’s “serious errors” warranted vacatur. By “invit[ing] agency indifference,” Judge Miller warned that remand without vacatur would abet the EPA’s continued failure to comply with its legal duties. Indeed, according to the agency’s own admission, it has a backlog of “hundreds” of registrations that are out of statutory compliance.
It is noteworthy that the government’s argument for remand without vacatur rested on the viability of vacatur as an alternative. Since 2018, the Justice Department has been arguing that Section 706 of the APA, which calls for a court to “set aside” an “unlawful” agency action, does not allow for universal remedies like vacatur. See generally Mila Sohoni, The Power to Vacate a Rule, 88 Geo. Wash. L. Rev. 1121 (2020). Even though judicial review for the ESA claims in Center for Food Safety v. Regan proceeded under the APA’s scope of review section, the Justice Department did not argue that vacatur was unavailable in pressing for remand without vacatur.
