The National Potato Council joined nine other associations in filing an amicus brief against a petition by the Center for Food Safety and Pollinator Stewardship Council, submitted in April 2023, for a rehearing in the Ninth Circuit’s decision on sulfoxaflor, sold under the tradenames Transform and Closer.
In late December 2022, the court ruled that EPA unlawfully issued the sulfoxaflor registration but that the proper remedy was “remand without vacatur” (which is a judicial remedy that permits agency orders or rules to remain in effect after they are remanded by the reviewing court for further agency proceedings). The decision not to vacate (or dismiss) was 2-1. The majority expressed reservations about not vacating the registration but justified it as appropriate because vacatur would likely harm the environment and disrupt the agriculture industry.
The remand requires EPA to make an effects determination under the ESA and ordered EPA to go through notice and comment within 180 days of the mandate being issued.
Given the large number of pesticide cases brought in the Ninth Circuit, the court’s resolution of this issue has the potential to have significant impacts on growers’ access to crop protection products.