Last week, the environmental and farm workers’ rights groups petitioning the D.C. Circuit to overturn the U.S. Environmental Protection Agency’s (EPA) conditional registration of the pesticide aldicarb, used on citrus grown in Florida, filed a surreply brief in support of their case. The brief addressed the EPA’s two latest arguments in its motion for remand without vacatur: that the case is prudentially moot and that the court must hold the case in abeyance pending the outcome of a related, state-level dispute.
By way of background, the EPA’s reply and petitioners’ surreply follow a late April decision by the Florida Department of Agriculture and Consumer Services (FDACS) denying the state-level application for Aldicarb. Thereafter, AgLogic Chemical LLC, producer of Aldicarb and intervenor in the D.C. Circuit lawsuit, wrote to the court notifying it of the denied application.
In the letter, the company argued that the pesticide lawsuit should not be stayed as the petitioners request because, pursuant to the FDACS decision, Aldicarb cannot be used before Nov. 15, 2021. The petitioners, Farmworker Association of Florida, Environmental Working Group, and Center for Biological Diversity, responded with a letter of their own, explaining that because AgLogic intends to challenge the denial, the FDACS decision is neither final nor a stay premature.
In their May 12 surreply, the petitioners contended that “it is disingenuous for EPA to suggest that this case is prudentially moot when it has not ceased its own admittedly illegal activity, and it recognizes that Florida’s decision is not the final word because AgLogic intends to challenge it.” Dismissal based on prudential mootness would leave the petitioners without a remedy if AgLogic prevails in its challenge to FDACS decision, they claimed.
The petitioners further contended that, “recognizing this, EPA asks this court in the alternative to hold the case in abeyance until Florida decides.” However, they claimed, this proposal is merely a “different pathway to the same result.” Should AgLogic prevail, they explained, it would similarly put the petitioners at risk of harm through the sale and use of the allegedly dangerous pesticide, without recourse to prevent it.
The Center for Biological Diversity represents Farmworker Association of Florida, Environmental Working Group, and itself in the litigation.