Last week, plaintiffs in the case that lead to the vacatur of three over-the-top dicamba products filed another motion that would remove EPA’s current allowances for use of existing stocks. They claimed it went against the court order and that EPA should be held in contempt.
Late Tuesday, June 16, 2020, EPA responded to the plaintiff in court to denounce their accusations.
“Petitioners’ motion to ‘Enforce this Court’s Vacatur and to Hold EPA in Contempt,’ is a thinly-veiled attempt to revive arguments the court already rejected or declined to reach. It should be denied,” EPA said in court documents.
In addition to asking for the vacatur’s enforcement and EPA to be held in contempt, plaintiffs asked the court to reexamine the mandate to rule on issues that weren’t pertaining to the Endangered Species Act (ESA).
EPA is asking the Court to deny the petitioners’ motion for the following reasons:
- Petitioners have shown no ‘exceptional circumstances’ that support recalling the Court’s mandate.
- The vacatur was clear and definitive and should not be expanded or revised.
- Petitioners’ desired ‘clarification’ goes beyond the relief authorized by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and contrasts basic principles of administrative law.
- Court should not and does not need to recall the mandate to rule on unaddressed ESA issues.
- EPA acted consistent with and did not violate the court order.
- The cancellation order issued by EPA didn’t violate a ‘specific and definite court order’ and thus cannot give rise to contempt sanctions.
- The cancellation order was consistent with the vacatur order.
- The petitioners’ motion is not the proper vehicle—and this court is not the proper tribunal—to review the cancellation order issued by EPA.
“There are numerous other problems with petitioners’ motion,” EPA said in court documents. “For example, petitioners’ request that the Court recall the mandate so that petitioners can have another opportunity to litigate their ESA claims and raise entirely new merits arguments distinguishing over-the-top uses from other uses is wholly unwarranted. But the most important point is that EPA’s cancellation order is, contrary to petitioners’ distorted characterization, an entirely appropriate and responsible response to this Court’s decision.”
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