Parties in DC Circuit Lawsuit Respond to Florida’s Rejection of Aldicarb Registration

The announcement from the Florida Department of Agriculture and Consumer Services (FDACS) that it denied the state-level application for Aldicarb sparked additional arguments in the D.C. Circuit’s review of the U.S. Environmental Protection Agency (EPA)’s conditional registration of the pesticide. 

AgLogic, producer of Aldicarb and intervenor in the lawsuit, submitted a letter to the court last week notifying it of the denied application. The company noted that the denial supports the argument that the pesticide lawsuit should not be stayed, as the petitioners, farmworker and environmental groups, have requested. 

“It was, and is now even more, a certainty that aldicarb will not be permitted to be used on oranges and grapefruit in Florida before April 30, 2021. The earliest date by which such application will be permitted is November 15, 2021,” AgLogic said, arguing that the request for a stay is premature. 

The petitioners – Farmworker Association of Florida, Environmental Working Group, and Center for Biological Diversity – filed a letter to the court clerk on Monday in response to AgLogic. The letter explained that since AgLogic “intends to challenge the denial,” it is not final and the stay is not premature. 

They explained “if AgLogic prevails in its state challenge, without a stay from this Court, AgLogic may immediately sell aldicarb products for use on citrus in Florida. Once sold, EPA allows use of what it refers to as “existing stocks” even if a Court vacates the registrations prior to the season of use.”

In addition to the letter, the plaintiffs filed a reply to AgLogic’s opposition to its motions for vacatur and stay of the D.C. Circuit lawsuit. In this filing, the parties alleged again that the EPA illegally approved the “highly toxic pesticide” and that the requirements for a summary vacatur had been met. 

The EPA has asked that the court remand the decision to it for reconsideration, so that it can complete the required evaluations under the Endangered Species Act, which it has admitted were not completed, rather than awarding a vacatur as the plaintiffs requested. The defendant also submitted a letter to the court after FDACS rejected the state registration. 

In the letter, the EPA asserted that this denial “calls into doubt Petitioners’ assertions that they have Article III standing,” and that the plaintiffs “still must demonstrate that the violation in fact resulted in injury to a concrete, particularized interest.” 

The defendant alleged that summary vacatur “is unwarranted,” and that remand without vacatur, as it has requested, would not cause any harm to the petitioners. 

AgLogic is represented by Hunton Andrews Kurth LLP. The plaintiffs are represented by attorneys with the Center for Biological Diversity.