morning your honor as i'm a pleasingly george kimbrel on behalf of the petitioners i'll be handling our fit for arguments my colleague paul tof will be handling the endangered species act arguments have a proposed time allocation we have course we'll keep our own clock but our plan is for each to speak for seven minutes and to save six minutes combined for rebuttal all right e p a s registration of monsanto's extend emacs approved for the first time this spring on growing cotton and soybeans of dye kamba of these crops now genetically engineered to be resistant to this pesticide its first season was unprecedented in the amount of drift damage with three million acres of u s farmland including many crops and trees damaged as one agricultural experts said we have never seen anything like this before in our agricultural history state experts told the e p a and gave them studies showing that i don't try to read so quickly i'm reading that judge fletcher i think the record has plethora of evidence that is specific to extent emacs in particular for example as i mentioned several university scientists agronomist from the university of arkansas tennessee missouri they also admitted studies yard two ninety five to three forty three for example where they tested the volatility of extended max in particular and showed that it was causing vapor drift in causing harm and when when did those studies go out in the summer of two thousand seventeen so after the up after the application for self right i mean that was the first time that the scientists had the independent scientists had a chance to ever test the two different time frames that one what was in front of the e p when it approved the temporary registration in two thousand and sixteen and the other is what do we learn afterwards and as i read the statement here there is selling is nothing on the record that tells us there's any damage afterwards and you're telling me that's just wrong absolutely your honor i think there's a plethora of evidence in addition to what i cited i think and i would point the court to you are three three seven three zero two three forty five three sixty one two three sixty two those all talk about extending man next in and i ask you then this timing issue is bothering me a little in two different contexts so let me start with the most imminent one and that is that the two year period expires on november ninth correct two thousand eighteen yes judgment young couple of months from now yes ok so at that point this regulation will no longer be effective is that correct yes just you know less e p a takes further action which would extend the registration to two thousand and twenty one but if they were to take further action to extend the registration would they need to go through the whole process of notice and comment and foundation or is there some expedited process where magically on november ni there's a new regulation on november tenth i would ask my colleague at e p a the same question will be your honor i don't know if i will say then two thousand and seventeen there was no notice and comment on the amended registration decision which me which is the operative license of the pesticide currently in front of the court the one eye if this were to expire and evaporate if you will in terms of the regulation that at least by november ninth would be mo it expires then there i agree there's no lawful license for the pesticide ok so then let me ask another question that's a more practical question and that has to do between now and november because my understanding is that some of the summer is the growing season for these soybeans in the united states correct yes you know and then they'll go off and harvest them maybe this but at that point they've already used for the summer season this chemical component that you're challenging is that right yes so will anything happen between now and november the practical matter between as regards to the dissemination and use of this chemical  well no not in the field i think there's some you're right that the summer season is when it's really active so it would be more dormant during the during the winter until we get to the summer as far as the certainly this is the planting season for two thousand and nineteen is a critical season because it's yes so now i want to go to the second timing issue that i'm interested in and one by judge let your so with respect to your challenge the two thousand and sixteen  conditional registration do you agree with respect to that registration that we need to look at evidence that was in the record at that point i think you are it's one it's one registration it's one action and so we think the whole of the record for requires to be reviewed so the critical decision in two thousand and seventeen has to include the record of harm in two thousand and seventeen certainly we believe there was record evidence in front of the agency for the initial registration that we pointed to in our briefs of the foresee requirement there's some additional information correct and then is there further additional information after the two thousand and seventeen labeling so the amended return and now so this week so the amended registration would be the end of the administrative records so that's what we have to and that's what we've provided to the court and we think that that record evidence is very important and needs to be reviewed in the decision the critical component is that e p a made no new findings no new assessments no even explanatory rationale why it did what it did in two thousand and seventeen and why would stop the harm i think the decision in two thousand and seventeen was effectively an admission by them that what they had done originally was not sufficient but the problem is even if they made it probably better that's not the fit for standard the fifth standard is supported by substantial evidence and here there is no evidence to support what they put in place in two thousand and seventeen and most importantly their reliance back on the two thousand and sixteen assessments doesn't take into account you can't grapple with the two thousand and seventeen record evidence so factually it's inconsistent legally are they when they do that in other words obviously they were triggered by information presumably supplied by scientist and others to to change the labeling requirement but in doing that are we supposed to be is that evidence to benchmark what happened in two thousand and sixteen no judgment here and we're not trying to use post decisional evidence i think the critical way to understand it is that they have incorporated those two thousand and sixteen assessments without change in the two thousand and seventeen decision and the two and they don't account they can't account for what happened  so you know fundamental precepts of administrative law say agencies have to explain and support their rationale and here there is none of that there's nothing why how what we've done is going to work with respect to erica aspect of the decision in two thousand and sixteen not yet looking at the studies of two fields by monsanto one in texas and one in georgia georgia yes i read the summary by e p a of its analysis of those studies and i couldn't find the acreage professor mortons and says one is three point four years one is nine point six acres is that the right acreage for those studies judge fletcher i believe so and i just want to know them eating into my colleague's time so i'll answer your thirty four would be the critical page your four thirty four that talks about those these studies and how they they went past or exceeded their own harm threshold which this court has said is not proper in pollinators stewardship  case ok thank you ok thank you thank you hundreds of no effect findings with respect to species in critical habitat that are contrary to the record e p a erroneous lead to find the action area contrary to the record to exclude most species and habitats from any consultation consideration and third e p a without legal basis categorically exempted itself from consulting on any critical habitat section seventy two required  consult the expert wildlife agencies if the extent of max registration quote may affect any of the approximately nine hundred listed plants and animals and about five hundred designated critical habitats on millions of acres across thirty four states where extended max was authorized for use this court on in the correct tried case define the standard for may affect as quote any possible effect whether beneficial but nine adverse pardon me or of an undetermined character for almost all of the species and all of the critical habitats e p a declared extended max would have no respect to certain listed species but this species that excluded i think with a species that would somehow be off the treated fields my understanding is that they said any species that might be off the treated fields we won't consider because the untreated fields won't be exposed to this formulation of a campus that matters correct understanding how that is what they did that is correct at fletcher so  decide what's the evidence that there would be no effect on the untreated fields from the extended maps on the untreated fields well that's to say the treated feels clearly have it and they did analyze ok what about the animals who live in those fields and  decision to exclude all of the animals and plants outside the treated fields that was based on e p a s determination that mitigation would effectively reduce the impact not only minute it but reduce the impact to the two below the no adverse no observed adverse effects level and well actually i'm not sure that i'll just read you from new york twenty nine is  doesn't say reduce them to a low level as well as any that portion says any i would look at e p a s brief at pages thirty five and forty one citing e r eighteen thirty one and seven twenty one where the e p a found that its mitigation quote would effectively prevent off field movement in amounts greater than the no observed adverse effect concentration which of course is not the no effect standard  and i would add the fact that we know based upon the record which is before the court based on the twenty seven thousand growing season that over three million acres of crops outside the sprayed fields were damaged by drift and though all of those more than three million acres e p a assumed wouldn't be affected so three million i think you probably want to see my drift and vol going to be any harm it knew in two thousand and seventeen when it made its amended decision that that assumption of no drift was grossly erroneous and yet it didn't make any changes whatsoever to its endangered species act assessments it made no changes whatsoever to its no effect findings it simply stood on them and they're obviously wrong now with respect to even the species that were on the fields e p a consistently applied the incorrect legal standard it did not look at the no effects standard it didn't even try what it did was it looked at what it calls the level of concern which is a measure of harm that e p a creates under the fair for context and has imported into the endangered species act context and e p a finds no effect whenever it's risk quotient which is the likelihood of mortality does not exceed its own level of concern which is the risk of mortality acceptable to e p a so what it actually found was not that there was no effect on the animals in the treated fields it what it found in every case where it did a refined risk assessment for animals that could be found in the fields it found measurable risks to each and every one for example we've talked about the whooping crane in our brief as an example from the record quote a risk quotient of point one one does not exceed the chronic level of concern of one point zero consequently in no effect the terminations concluded equates to no effect although e p a and monsanto say over and over again we found no effect we found no effect there is no evidence showing that and in fact when their findings show that it is something has a risk the record is replete with admissions from e p a and even from months anto in their brief that what e p a actually looked for was adverse effects not no effect they consistently said so and we've cited in our brief examples from the record adverse effects is not the consultation standard that no effect standard is extremely low and it requires consultation for any effect even those that cannot be meaningfully measured or evaluated under extremely unlikely to occur e p a didn't look for those effects and therefore it's no effect findings are unsupported thank you other hand are looking to use anecdotes and reports that were unconfirmed and investigations that were uncompleted to cast aspersions on e p a decisions but this court's decision has to be based on  scientific analysis any ph with respect to e p a is evidence in two thousand and sixteen it did field studies for two fields one in texas and one in georgia and i'm looking at the appears analysis of that apparently they did one application on each of the two fields the got data as to the impact  off site on the texas field but refused to provide it on the ground that there was di camber found but they thought it might be coming from some other source so the only data we have is from one of those two fields arkansas as i understand it looked the same studies and said sorry that's not enough we're not going to allow it on our state you know and you guys turned out to be wrong respectfully the court's role is to look at what evidence area and there are extrapolations made based on the concentrations found that's not in dispute that that one was invalid i'm asking about the real world studies and apparently we've got only two who can call it that the two different fields fifth and the e s a these studies have not been contradicted there have been no other studies site cited to by the petitioners well i'm not sure we need studies we now have three million acres worth of real world experience i'd like to address that your hon e and every single citation is like this or the alternative they're citing to these reports and anecdotes reports in the media and the like for example in our seven seventy seven there were there comments from twenty sixteen the center for food safety is one of the petitioners there stating to the potential that growers apply herbicides two adjoining fields by mistake that's one possible possibility for what happened in twenty seventeen similarly for forty two through forty four the state of georgia is just cut the chase on the practicalities of the laws so i'll ask you the same question that i asked the family from coalition and that is when the regulation and the two thousand and seventeen amendment expire on november ninth what happens so your honor that there really basically three chapters is there's chapter one twenty sixteen chapter two twenty seventeen where  deluged with information investigations that have begun in the states but haven't been completed e p a may have preferred a more perfect system for channeling information to it but that's simply not the way the system works e p a was is was sifting through this and on this for a reason because it wanted to be able to take a look there and at two thousand eight hundred number nine this regulation expires by its very terms so we're want to extend what it then need to go through notice and comment and looking at what was learned post two thousand and seventeen amendment what would happen as a ministry regulatory posture so here's what i can tell you about what i know in twenty eighteen the expiration date is nov ninth certainly decision will be taken by then but if you're a intends to actually render a decision in the near future in order to enable growers to make a seed purchasing decisions and so that will be made and i notice and comment is something that i'm not aware of as the weather is not there and so that two thousand and eighteen this regulation as we know  correct ok it will either and i or or there will be a renewal but either of those will happen so if there is a renewal that will be based on the information we have  about the two thousand and nineteen and what will happen and what can and can't be used in two thousand and nineteen but this order as i understand you will not affect the subsequent growing season because it expires correct it will be entirely new decision based on entirely new record there are been new studies that have been very kind about that are actually analogous to an on the same sort of level of the ones decide to consider ten twenty sixteen i was there have been all the reports that the petitioners are referring to that do not did not give the v a sort of the the ability to go back and question is decisions in twenty sixteen will also be considered a piece considering  is there any basis that you know that this particular regulation would not become upon its expiration in terms of a challenge to it honestly we'd have to look at i think what is decided and there would probably need to be briefing on that but there are certainly some areas where it could become moot i think we would have to look at that and i'm i'm i'm still working on judge ensure things but i'm i'm working sort of we're in the realm of outside of the record you're ours and anyway they're working when i can say a new decision will be coming it will consider all of the evidence that petitioners have have another order which will be based on a different record is that a fair you know at this point it's speculation pure speculation for me to say what exactly if you decision will be i didn't ask you what it would be you told me there is likely to be a decision i don't know what you don't know but is that incorrect to say there's likely to be some follow on decision related to this pesticide in these seeds asli that's something i haven't looked into you want to be happy to brief it i think that that would be something we would want of the carefully well even if it apart from notice and comment if the regulation expires by its own the i believe that there are opportunities to amend with that there was a comment but i again this is a question that you know was not briefed and it's not what it seems to me that when you show up in our court room at the end of august and there's going to be a question but not one i think this one you'll be able to answer straight up are you reserving time for your colleague yes your honor and how much eight minutes ok if you have a few more ok time thank you your honor fourteen well i'll give you a minute or so because we gave them a little leeway ok so your honor again i was getting back to the the idea that there were really three chapters here first the twenty sixteen decision and second chapter the twenty seventeen amendment where e p a did everything it could do this at most in a very short timeframe under the framework provided underfed for us so i'm in this label and get moving and take all of the reports that were coming in and look at them and trying to say what to do next and they say you didn't even use the right standard even forget what the reports were they said this notion that you ultimately decided that there was no effect is not really coextensive with the fact that  the legislative history as to what that amendment was about of different and it is against the it goes against the grain of the actual language of the statute and for first of all e p a used the  the unconditional registration standard which is to say whether the registration would generally cause adverse effects to the environment that is a wholesome whole holistic analysis of whether there remain viable until that information is provided that's the standard is for whether there's going to be a substantial risk of an increased risk of adverse effects to the environment and i'm afraid i've got one that question a predator colleges are taking you over but i bet you're going to get your eight minutes anyway my question is with respect to the record that we can consider him  valuating the challenge to the regulation or the authorization now in front of us do we consider only what was in front of the e p a in one thousand in two thousand and sixteen or do we consider what was in front of the e p a when a did the the amended label in two thousand and seventeen so thank you judge for the there are two separate questions that should be considered separately the positions would like to meld the two together but in fact the twenty sixteen decision needs to should be taken on the basis of the record that was before you at that time and the twenty seven thousand decision to amend which only ratcheted up the standards needs to be looked at on the basis of the record that was before you became twenty seventeen ok one quick question is it fair to say that the information that came to light in twenty seventeen didn't cause you to revisit the temporary r wanted yes or no so i appreciate that and then let me ask you if you would please can you just start the clock over and put it minutes on that thank you thank you your hon please the court i'm richard brass represent the intervenor monsanto i would like to address first the mootness issue second the issue of what happened in two thousand and seventeen and what importance it has or doesn't have third i'd like to spend most of my time if i can on the issue of subject matter jurisdiction i'll get to that third but i think it actually is dispositive of this case so first moving us i do have a yes or no answer for you your honor regardless of whether e p a on the basis of a new record determines to extend the registration forward or decides instead to let it expire this case will be moot either way because the current record in the current well i can be even more technical basically the canopies of the plants are high enough that the weeds don't need to be addressed through pesticides and e p a as it is suggested is going to decide by november n actually as they've suggested probably earlier than that because farmers need to know what kind of seeds they can buy for the next season so this case is is really shortly to become one that has has no effect let's talk about two thousand and seventeen judge fletcher you  number of questions about it i think most of what my first question was with the sentence that you wrote that i read that there's nothing in the record to connect any of this crop damage to extend to max and that was part of what i would like to address  honor what we have in the record from two thousand and seven is that three thousand acres of crops were damaged allegedly again it's on but it's not a an official number but that's a number that continues to be thrown out we appreciate that there were a number of incidents a number of places to start with your honor there were three different pesticides used during that period that had to camp and that monsanto's extent of max is less than fifty percent of the market for that and so to the extent first of all we're talking about incidence we're also talking but in genia for example made by p s a b s f that's a different formulation doesn't have papers grip it cetera so and that was the other month santo's extended next wasn't used in arkansas were send to the extent that complaint cited off target moving to pesticides nothing in the record demonstrates that extend to max was the cost yes your honor we stand by that nothing in the record demonstrates that there have been no it looks like you're kind of beyond a reasonable doubt here's what demonstrate means your honor certainly there are plant scientists who came out with views that they believe they believe that extended max  volatilize to a point where it could have been a cause for some of those incidents we dispute that we've done our own studies your honor that will be taken into account this fall this states have come forward as well your honor with lots of other reasons for the incidents including failure to clean the tanks misuse of the instructions etc etc so yes your honor we do stand by it but let me address i think more importantly for two thousand and seventeen it's really a lot of color thrown up like  if you don't mind i'd like to stick with two thousand and sixteen for a minute could you give me more information if you have it as to why the information and the dike hammock contamination off site for the texas field was not provided to the v a your honor the information for both texas there were two fields in texas two in georgia so not one well for one but two but and all four of them were provided please let me let me let me interrupt you one more time there were two fields in each place one field had the old formulation and one field had the new formulation so the new formulation was tested on one field in texas and one field in georgia and information the data the you got as to the reading for i don't think it's correct that we failed to provide them the data from the texas from the texas test e p a studied all of the data for both texas and georgia e p a came away with  with the conclusion if you look at page four sixty three of the e r that these tests were done and it would i've known this if it didn't have the data under near ideal idealized conditions for all its ization so it was these were tests that would show how much you could possibly conceivably have all the position they then ran it through using their media real logical information through their own calculations to come up with an even higher degree of confidence above ninety percent degree of confidence not provided i mean tests showed a greater degree of all it is the bullets ization than the texas tests and therefore they used the ga test for purposes of determining the exposure levels that would exist within five meters of the field and that i can but if i could will you need to but that might have existed outside the field may have been contaminated by matters other than voltages ation therefore the study itself was a contaminated study that's right i would want to include and therefore they did not provide to e p a the data right your honor that's what i've been telling for the last five minutes all right your honor i'm sorry i didn't if i could and i know that i'm riding on last time here but i know that the other side fortunately got a bit of time i believe this case should be decided as a matter of subject matter jurisdiction and i don't think this court should go beyond that the reason is that the order here on the notice of approval came up nov ninth two thousand and sixteen i it is undisputed in this case that the registration was effective as of that date under the statute section one thirty six and be the petitioners had sixty days from the date on which the order was entered they waited seventy two days instead of sixty days they were twelve days late there's two excuses that have been given so far for this one e p a has taken the position that it's possible for an order to be entered i mean effective and yet not entered for purposes of allowing judicial hundred five is that the agency has no power or authority to postpone the availability of judicial review till two weeks after it makes its orders effective as as this court well knows there's a strong presumption in favor of judicial review congress may be able to shoot to create such a period but the agency can't do it itself petitioners for their part have a different argument they say well they understand that someone that wants to come in immediately date certain as we've suggested it's entered when the order becomes effective it doesn't change depending on what a third party petition or when they choose to file their petition for review it's not the case that the order was entered fourteen days later if they chose not to file their petition to fourteen days later but if they chose to fathered petition fourteen days earlier it was entered at that time that's not how the law works nor does it work in a way that allows people to come in early and you just for me so yes i'll try to make a few points i'll start where we left off with forty c f r twenty three point six just very briefly monsanto's interpretation of the of the is contrary to the regulations plain language interpretation of it this court's interpretation of it twice including by the commissioner in this matter basically the regulation says on its face unless you specifically provides otherwise you add two weeks from whenever the registration is signed so if you look at e r one you got a signature you got a date explicit means unequivocal and so there's absolutely no i mean they may have issue with the regulation but the regulation says what it what it says so we are timely for both petitions with regards to the moon is question i want to get back to that i think it's vital that this court decide this case i think we have expedited this case and done our best to get it in front of this court as quickly as we can we had extra time those taken for the government to produce the record in this case and they've already extended it once with the two thousand decision so you know we anticipate they're going to do something potentially similar to that again without notice and comment but it's going to be another amendment to this very same action just like the two thousand and seventeen decision superseded and incorporated the two thousand and sixteen decision that is what's going to happen again so but what we need is guidance from the court so we don't face the same situation again with regard to the lack of compliance with the endangered species act so help me understand the consequences let's imagine i'm not predicting let's imagine that we agree with you on the merits and let's imagine that we enter a decision publish the decision that's on the street on november first what possible consequence will that be i think your honor it will give guidance to the agency on how to do this the right way compliance with fifty only as a advisory for a fair your honor didn't mean it in that manner i just meant that right now this is a live decision and that's all we know but if and when there was a further decision live decision facing a certain fair fair point judge hawkins i guess i would say even under the capable repetition of fading evading review prong it's very same way so i think it is vital that the court issue a decision here why should we wait till november ninth because it will have no practical effect on the planet earth here with what if we going well we have an answer to all these probabilities are we don't we don't know what the agency's going to do but to the extent that the record is fully briefed and these arguments are fully briefed and there's a reasonable expectation  of this record they they claim they're going to consider the two thousand and seventeen evidence in the next decision they had to consider it now this decision it was not supported by substantial evidence for that very reason so i do think it's going on to the other points very quickly yes they do include arkansas yes and i think for your purposes in terms of tracing it to formulation either monsanto's or the competitors about from variation i think we have to exclude those don't we yes just fletcher absolutely but you've got hundreds of thousands of acres in this court has said repeatedly that in the neighborhood and is not good enough if you exceed your own harm threshold the e p a it's not supported by substantial evidence so you know that that's the crux of our argument on that point with regards to the the other formulations that were mentioned i think the critical registration here is the extend emacs registration there was no notice and comment and no different risk assessments for those other formulations they are all tiered off of these risk family farm quotation versus the e p a and monsanto has responded intervener is submit