Free Motion to Intervene - District Court of California - California

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Laurence A. Weiss (Bar No. 164638) [email protected] HELLER EHRMAN LLP 275 Middlefield Road Menlo Park, CA 94025-3506 Telephone: 650.324.7000 Facsimile: 650.324.0638 David B. Weinberg (D.C. Bar # 186247) (Pending pro hac vice) [email protected] Eric Andreas (D.C. Bar # 462777) [email protected] David E. Markert (D.C. Bar #502486) [email protected] WILEY REIN LLP 1776 K Street NW Washington, DC 20006 Telephone: 202.719.7000 Facsimile: 202.719.7049 Attorneys for Intervenor-Defendant Makhteshim Agan of North America, Inc. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION PESTICIDE ACTION NETWORK NORTH AMERICA, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. C 08-03542 VRW NOTICE OF MOTION, MOTION TO INTERVENE, AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION Date: Thursday, December 4, 2008 Time: 2:30 PM Courtroom 6, 17th Floor The Honorable Vaughn R. Walker

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................................................................................................i NOTICE TO PLAINTIFFS, DEFENDANT, AND THEIR ATTORNEYS OF RECORD........... iii POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO INTERVENE...........................1 I. II. STATEMENT OF THE ISSUES .............................................................................................1 RELEVANT FACTS................................................................................................................2 A. B. Endosulfan ........................................................................................................................2 Statutory Background And Regulatory Scheme...............................................................3 1. 2. FIFRA .......................................................................................................................3 The ESA....................................................................................................................4

Plaintiffs' Action ..............................................................................................................5 MANA ..............................................................................................................................5

III. ARGUMENT............................................................................................................................6 A. Intervention As Of Right Should Be Granted ..................................................................6 1. 2. 3. 4. This Motion To Intervene Is Timely ........................................................................6 MANA Has Significantly Protectable Interests In This Case ..................................7 Disposition Of This Case May Affect MANA's Interests........................................9 The Existing Parties Do Not Adequately Represent MANA's Interests ..................9

Permissive Intervention Should Be Granted ..................................................................11

IV. CONCLUSION.......................................................................................................................12

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TABLE OF AUTHORITIES CASES Cemex, Inc. v. County of Los Angeles, 92 F. A'ppx 457 (9th Cir. 2004) ....................................................................................6 Dimond v. District of Columbia, 792 F.2d 179 (D.C. Cir. 1986).....................................................................................10 Forest Conservation Council v. United States Forest Service, 66 F.3d 1489 (9th Cir. 1995) ...................................................................................7, 10 Fund for Animals v. Norton, 322 F.3d 728 (D.C. Cir. 2003).....................................................................................10 Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002) ...............................................................................11, 12 Nader v. Ray, 363 F. Supp. 946 (D.D.C. 1973)....................................................................................8 National Association of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007)...................................................................................................4 Natural Resources Defense Council v. Costle, 561 F.2d 904 (D.C. Cir. 1977).....................................................................................10 Natural Resources Defense Council v. EPA, 99 F.R.D. 607 (D.D.C. 1983) ..................................................................................8, 10 Northwest Forest Resource Council v. Glickman, 82 F.3d 825 (9th Cir. 1996) ...........................................................................................8 People for the Ethical Treatment of Animals v. Babbitt, 151 F.R.D. 6 (D.D.C. 1993) ..........................................................................................8 Sierra Club v. EPA, 995 F.2d 1478 (9th Cir. 1993) ...................................................................................7, 8 Sierra Club v. Espy, 18 F.3d 1202 (5th Cir. 1994) .........................................................................................7 Southwest Center for Biological Diversity v. Berg, 268 F.3d 810 (9th Cir. 2001) .....................................................................................6, 9 Trbovich v. United Mine Workers of America, 404 U.S. 528 (1972).......................................................................................................9 United States v. Alisal Water Corp., 370 F.3d 915 (9th Cir. 2004) .........................................................................................7 United States v. Oregon, 745 F.2d 550 (9th Cir. 1984) .........................................................................................7 MOTION TO INTERVENE AND SUPPORTING MEMORANDUM C 08-03542 VRW - i -

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ADMINISTRATIVE & EXECUTIVE MATERIALS 69 Fed. Reg. 26819 (May 14, 2004) ..........................................................................................3 RULES & REGULATIONS 40 C.F.R. § 152.50(b)(3) ......................................................................................................... iii FEDERAL STATUTES 5 U.S.C. § 551............................................................................................................................8 7 U.S.C. §§ 136-136y .............................................................................................................. iii 7 U.S.C. § 136............................................................................................................................3 7 U.S.C. § 136a..........................................................................................................................3 7 U.S.C. § 136a-1 ..................................................................................................................1, 3 7 U.S.C. § 136d..........................................................................................................................2 16 U.S.C. §§ 1531-44 ................................................................................................................4 16 U.S.C. § 1533........................................................................................................................4 16 U.S.C. § 1536....................................................................................................................1, 4 MISCELLANEOUS Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1916 (1972).....................................................7 Fed. R. Civ. P. 24(a) .................................................................................................. iii, 6, 7, 11 Fed. R. Civ. P. 24(b) .......................................................................................................... iii, 11

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NOTICE TO PLAINTIFFS, DEFENDANT, AND THEIR ATTORNEYS OF RECORD PLEASE TAKE NOTICE that on Thursday, December 4, 2008, at 2:30 PM, or as soon thereafter as the matter may be heard, in Courtroom 6 of the United States Courthouse located at 450 Golden Gate Avenue, 17th Floor, San Francisco, California, Applicant Makhteshim Agan of North America, Inc. ("MANA") will and does hereby move the Court to grant it intervention under Rules 24(a)(2) and 24(b)(2) of the Federal Rules of Civil Procedure. By this motion, MANA seeks an Order from this Court granting it intervention as a defendant in this case. MANA has an absolute right to intervene as a defendant because it has substantial interests in endosulfan, the pesticide that is the subject of this case, and those interests are not adequately represented by the existing parties. MANA holds EPA registrations pursuant to the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136-136y ("FIFRA") for several agricultural products that are formulated with endosulfan and is the authorized agent under FIFRA for Makhteshim Chemical Works, Ltd., the primary manufacturer of technicalgrade endosulfan in the United States. See 40 C.F.R. § 152.50(b)(3). Thus, MANA would be directly and adversely affected by a ruling in the Plaintiffs' favor that the Defendant, the United States Environmental Protection Agency, violated FIFRA and the Endangered Species Act in determining that endosulfan was eligible for reregistration. For these same reasons, MANA also has a permissive right to intervene in this case. On August 19, 2008, Counsel for Plaintiffs informed MANA that Plaintiffs do not oppose this motion, but declined MANA's request to stipulate to the motion being granted. Also on August 19, 2008, Counsel for Defendant informed MANA that EPA does not oppose this motion, but declined MANA's request to stipulate to the motion being granted.

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DATED: August 20, 2008

HELLER EHRMAN LLP By: /s/ Laurence A. Weiss [email protected] HELLER EHRMAN LLP 275 Middlefield Road Menlo Park, CA 94025-3506 Telephone: 650.324.7000 Facsimile: 650.324.0638

David B. Weinberg (D.C. Bar # 186247) (Pending pro hac vice) [email protected] Eric Andreas (D.C. Bar # 462777) [email protected] David E. Markert (D.C. Bar #502486) [email protected] WILEY REIN LLP 1776 K Street NW Washington, DC 20006 Telephone: 202.719.7000 Facsimile: 202.719.7049

Attorneys for Intervenor-Defendant Makhteshim Agan of North America, Inc.

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1

POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO INTERVENE

I.

STATEMENT OF THE ISSUES The present action arises from the United States Environmental Protection Agency's

("EPA" or "the Agency") decision to continue to allow the reregistration of certain uses of the pesticide endosulfan. EPA's decision was made as part of a Reregistration Eligibility Decision ("RED") for endosulfan that was issued by EPA on July 31, 2002.1 REDs are the end result of a lengthy reregistration process that EPA is required to undertake for all pesticides first registered before November 1, 1984. See Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA") § 4, 7 U.S.C. § 136a-1. EPA concluded in the RED for endosulfan that there was sufficient information on the human health and ecological effects of endosulfan to support the continued use in agricultural settings of endosulfan-containing products. Although the Agency did identify some occupational and ecological risks from the agricultural use of endosulfan, it found that these risks could be controlled through the implementation of mitigation measures and labeling changes. Also, EPA identified in the RED additional studies of endosulfan's risks to human health and the environment that it required be conducted by the pesticide's registered manufacturers. Plaintiffs here ask the Court to declare that EPA acted arbitrarily, capriciously, and in violation of FIFRA when it approved reregistration of endosulfan for continued use in agricultural applications. Plaintiffs also ask the Court to issue an injunction that orders EPA to make a new reregistration eligibility decision for endosulfan and to impose protective measures until a new reregistration eligibility decision is issued. Plaintiffs also ask the Court to declare that the Agency violated Section 7(a)(2) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(a)(2), by reregistering endosulfan without first consulting the United States Fish and Wildlife Service ("FWS") and the National Marine Fisheries Service ("NMFS") (collectively "the Services"). Plaintiffs thus seek an order that compels EPA to consult with the Services on the effects of
The endosulfan RED is available on EPA's website. See EPA, Pesticide Reregistration Status, http://www.epa.gov/pesticides/reregistration/status_page_e.htm (last visited Aug. 7, 2008).

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endosulfan and imposes interim protective measures until such consultations are complete. Resolution of the Plaintiffs' claims will have a direct, immediate, and substantial impact on the ability of Makhteshim Agan of North America, Inc. ("MANA") to market and sell its endosulfan products and on its investment in studies currently being performed for purposes of complying with the endosulfan RED. Furthermore, if this Court were to require EPA to make a new reregistration eligibility decision for endosulfan, MANA would be obliged to participate in that proceeding, and the end result could be either more burdensome restrictions on the uses of MANA's endosulfan-containing products or the initiation of proceedings to suspend or cancel those uses. See FIFRA § 6, 7 U.S.C. § 136d. Either of these outcomes would have a significant and adverse impact on the future sales of MANA's endosulfan-containing products. Thus, MANA requests that the Court determine that it may intervene in this action, either as of right or permissively, so that MANA may defend its endosulfan registrations. II. RELEVANT FACTS A. Endosulfan

Endosulfan is a broad spectrum contact insecticide and acaricide that was first registered for use in the United States in 1954. Until relatively recently, endosulfan was a widely used pesticide in the United States. However, during the reregistration process the endosulfan registrants agreed to voluntarily cancel their registrations for residential uses of endosulfancontaining products, which constituted the majority of all registered uses. Now, endosulfan is registered for use only in agricultural settings. Consequently, the amount of endosulfan used in the past few years has dropped considerably. Due to the historic widespread use of endosulfan, its health and safety risks have been extensively examined and re-examined by numerous governmental regulatory bodies, including EPA. Millions of dollars have been spent in the past five decades on studies of the potential impact of endosulfan-containing products on human health and the environment. These studies have repeatedly shown that endosulfan is an extremely effective pesticide, the continued use of which presents readily manageable risks.

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B.

Statutory Background And Regulatory Scheme 1. FIFRA

EPA regulates the distribution and sale of pesticide products pursuant to the authorities set forth in FIFRA. Under FIFRA, a company may lawfully distribute or sell only those pesticide products that have been "registered" for specific uses by EPA. 7 U.S.C. § 136a(a). For a pesticide to be registered, the EPA Administrator must determine, among other things, that it "will perform its intended function without unreasonable adverse effects on the environment." Id. § 136a(c)(5)(C). In 1988, Congress amended FIFRA to require the reregistration by EPA of all products containing active ingredients that had been registered prior to November 1, 1984. Id. § 136a-1(a). Those amendments established a five-phase process. Id. § 136a-1(b). In Phase One, the Agency was to determine and list which pesticides are to be reregistered. Phase Two required EPA to identify the missing or inadequate data supporting those registrations. During Phase Three, the registrants of the listed pesticides were required to submit summaries of existing studies, flag studies indicating adverse effects, and commit to submit additional data as needed. EPA reviewed these submissions in Phase Four and required registrants to meet any unfulfilled data requirements. Last, in Phase Five, EPA performed a detailed review of all data submitted for each pesticide and determined whether that pesticide could be used without unreasonable adverse effects on people or the environment, taking into account the costs and benefits of the pesticide's uses. See id. §§ 136(bb), 136a(c)(5)(C), 136a-1(g)(2)(C). The reregistration process provides extensive opportunities for public participation. EPA procedures are designed to promote robust public involvement while making timely pesticide regulatory decisions. See 69 Fed. Reg. 26819 (May 14, 2004). As it has implemented this reregistration program, EPA has documented its evaluations in interim reregistration eligibility decisions ("IREDs") or REDs. In either case, when the Agency releases a reregistration decision it typically accepts public comment on that document. Pesticides that are determined by EPA to meet current scientific and regulatory standards as a result of its review of old data and newly submitted data may be declared "eligible" for reregistration. Many, if not most, reregistration MOTION TO INTERVENE AND SUPPORTING MEMORANDUM C 08-03542 VRW - 3 -

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eligibility decisions are conditioned on the implementation of risk reduction requirements such as application restrictions or use of additional personal protective equipment. As noted above, the RED for endosulfan was issued in 2002. In the RED, EPA determined that endosulfan was eligible for reregistration for agricultural uses provided mitigation measures and labeling changes were implemented.2 EPA also required the registrants to conduct several additional studies of endosulfan's effects on human health and the environment. 2. The ESA

The ESA, 16 U.S.C. §§ 1531-44, was enacted in 1973 and has been amended on several occasions. Its goal is to protect and conserve endangered and threatened species. Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2528 (2007). The Act protects endangered and threatened species that have been listed ("listed species") pursuant to the rulemaking process described in Section 4 of the ESA. 16 U.S.C. § 1533. As relevant here, the ESA requires federal agencies to consult with the Services to ensure that a proposed action will not jeopardize the continued existence of a listed species. Specifically, Section 7(a)(2) of the ESA provides: Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any . . . [listed] species or result in the destruction or adverse modification of [designated critical] habitat of such species. 16 U.S.C. § 1536(a)(2). EPA consulted with the Services in 1989 on the potential effects on listed species of the continued use of endosulfan. RED at 33. The Agency also is presently engaged in a Proactive Conservation Review with the Services under Section 7(a)(1) of the ESA, 16 U.S.C. § 1536(a)(1), and has stated that it would "reassess the potential effects of endosulfan use to [listed species] . . . [and would re]consider any regulatory changes recommended in the RED" upon completion of
2

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Prior to the issuance of the endosulfan RED, the technical registrants voluntarily amended technical product labels to remove all residential use patterns and further agreed to restrict the annual maximum use rate for all uses to 3 lbs. active ingredient per acre. The RED for endosulfan, therefore, does not analyze the risks for the residential uses that were removed from the pesticide's label.

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that review. RED at 33. Until then, it is EPA's intent that the risk mitigation measures specified in the RED serve as "interim protection measures." Id. at 34. C. Plaintiffs' Action

Plaintiffs' complaint, filed on July 24, 2008, seeks judicial review of EPA's decision to reregister endosulfan. Specifically, the Plaintiffs' challenge is based on the following assertions: In Count I of the complaint, the Plaintiffs allege that the decision to reregister endosulfan was arbitrary, capricious, and contrary to FIFRA because "EPA failed to conduct a complete assessment of the risks and benefits of endosulfan." Compl. at ¶ 40. Count II of the complaint alleges that, notwithstanding the Agency's failure to conduct a complete assessment of the risks and benefits of endosulfan, the decision to reregister endosulfan was arbitrary, capricious, and contrary to FIFRA because EPA proffered no rationale for how endosulfan's benefits outweigh its risks. Compl. at ¶¶ 42-43. Count III alleges that EPA violated the ESA by reregistering endosulfan without completing the consultations with the Services required by Section 7(a)(2) of the ESA. Compl. at ¶ 46. In the Prayer for Relief, the Plaintiffs seek, inter alia: (i) a declaratory judgment that EPA violated FIFRA and the ESA in reregistering endosulfan; (ii) an order requiring EPA to make a new reregistration decision that is based on a determination as to whether the benefits of the remaining endosulfan uses outweigh the risks and also on a consultation with the Services pursuant to Section 7(a)(2) of the ESA; and (iii) interim protective measures. D. MANA

MANA is an affiliate of Makhteshim Chemical Works, Ltd. ("MCW"), which is today the world's primary manufacturer of technical-grade endosulfan for pesticide products. Declaration of Mr. Ephraim Gur ("Gur Decl.") ¶¶ 1, 4 (attached as Ex. 1). MANA acts as MCW's agent before EPA on all endosulfan-related matters and also coordinates the domestic distribution and sale of MCW's technical-grade endosulfan. Id. ¶ 1. MANA also produces and sells technical endosulfan and several end-use products containing endosulfan for which it holds registrations. Id. ¶ 5. These products are used by farmers in the United States to defend against a variety of MOTION TO INTERVENE AND SUPPORTING MEMORANDUM C 08-03542 VRW - 5 -

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insect and mite pests of field, fruit, and vegetable crops. Id. ¶ 3. MANA has been an active participant in the endosulfan reregistration process. In the past ten years, MANA and MCW have invested millions of dollars in research and testing to support endosulfan's continued registration, and they continually update that research with data generated using the newest testing technologies. Id. ¶ 7. MANA also operates a product stewardship program that supports and advises customers on application techniques that minimize risks to people or the environment from endosulfan. Id. ¶ 8. MANA has strong interests in the property and transactions that are the subject of this case. Those interests include MANA's registrations for endosulfan, from which it derives economic benefits. Moreover, as the owner of numerous other pesticide registrations that may be affected by the decision in this case, MANA also has an interest in defending the reregistration process itself against the Plaintiffs' attacks. III. ARGUMENT A. Intervention As Of Right Should Be Granted

Under Federal Rule of Civil Procedure 24(a)(2), a third party is entitled to intervene as of right in a case if four conditions are met: (1) the motion for intervention is timely; (2) the third party claims an identifiable, "significantly protectable interest" relating to the property or transaction that is the subject of the action; (3) disposition of the action may impair or impede the third party's ability to protect that interest; and (4) the existing parties to the action may inadequately represent the third party's interest. Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001). This four-part test is to be construed "liberally in favor of applicants for intervention." Cemex, Inc. v. County of Los Angeles, 92 F. A'ppx 457, 459 (9th Cir. 2004); see also Berg, 268 F.3d at 818. MANA readily satisfies all four conditions and should be granted intervention as of right in this case. 1. This Motion To Intervene Is Timely

In determining whether a motion is timely, District Courts in the Ninth Circuit are to look to the following three factors: "(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay." MOTION TO INTERVENE AND SUPPORTING MEMORANDUM C 08-03542 VRW - 6 -

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United States v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004). Of the three factors, the issue of prejudice to the original parties is generally considered the most important. See United States v. Oregon, 745 F.2d 550, 552 (9th Cir. 1984) (quoting Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1916 (1972)); see also Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994) ("The requirement of timeliness is not a tool of retribution to punish the tardy would-be intervenor, but rather a guard against prejudicing the original parties."). The instant case is at a very early stage of litigation. The Plaintiffs filed their complaint on July 24, 2008. EPA has yet to file an answer in response. In addition, the first Case Management Conference is not scheduled until November 6, 2008, more than two months after the date of this motion. Thus, the submission of this motion to intervene is timely. Moreover, under these circumstances, neither the Plaintiffs nor EPA will be prejudiced by the timing of MANA's motion to intervene. See Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir. 1993) (intervention timely when motion made at outset of litigation). Thus, the first condition for intervention as of right is met. 2. MANA Has Significantly Protectable Interests In This Case

The second condition for intervention as of right is that the proposed intervenor claim a significantly protectable interest relating to the property or subject of the action. A proposed intervenor claims a significantly protectable interest within the meaning of Rule 24(a)(2) if the interest asserted is protected by law and related to the plaintiff's claims. Alisal Water Corp., 370 F.3d at 919. An economic interest may support intervention as of right, if it is concrete and related to the underlying subject matter of the case. See id. at 919; see also Forest Conservation Council v. United States Forest Serv., 66 F.3d 1489, 1496 (9th Cir. 1995) (stating that the interest requirement assists in "dispos[ing] of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process"). This condition is satisfied here. MANA holds EPA registrations that allow it to distribute and sell endosulfan products in the United States. Gur Decl. ¶¶ 1, 4. Under the Administrative Procedure Act, MANA's registrations are considered licenses that are protected by law. 5 U.S.C. MOTION TO INTERVENE AND SUPPORTING MEMORANDUM C 08-03542 VRW - 7 -

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§ 551(8) ("license" includes "the whole or a part of an agency permit, certificate, approval, registration . . . or other form of permission"). As such, MANA's registrations qualify as a significantly protectable property interest for purposes of determining its right to intervene in this action. See, Natural Res. Def. Council v. EPA, 99 F.R.D. 607, 609 (D.D.C. 1983) ("Plaintiffs' complaint challenges procedures pursuant to which EPA reached preliminary decisions that the intervenors' pesticide products merited continued registration. If plaintiffs succeed in this case, these regulatory decisions . . . will be set aside. Thus, the intervenors can be said to have a substantial and direct interest in the subject of this litigation."); cf. Sierra Club v. EPA, 995 F.2d 1478, 1485-86 (9th Cir. 1993) (ruling that holder of discharge permits under the Clean Water Act had a "protectable" interest and could intervene as of right where the litigation could result in modifications to those permits); Nader v. Ray, 363 F. Supp. 946, 953 (D.D.C. 1973) (granting intervention as of right to holders of nuclear facility operating licenses issued by the Atomic Energy Commission where the licenses would have been revoked or suspended if the plaintiffs prevailed). MANA also has a further economic interest in this case that supports granting it intervention as of right. MANA enjoys economic benefits as one of only a handful of companies that hold registrations to distribute and sell technical and end-use products containing endosulfan for the agricultural market. Gur Decl. ¶ 5. If the Plaintiffs prevail in this case, those economic benefits could be lessened or even eliminated. Gur Decl. ¶¶ 13-14. This interest, which is directly related to the subject of this action, is clearly sufficient to support intervention as of right. See, e.g., People for the Ethical Treatment of Animals v. Babbitt, 151 F.R.D. 6 (D.D.C. 1993). Third, MANA participated actively in the five-phase reregistration process that culminated in the endosulfan RED. Gur Decl. ¶ 10. The Ninth Circuit has frequently approved intervention by entities that were "directly involved in the enactment of the law or in the administrative proceedings out of which the litigation arose." Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 837-38 (9th Cir. 1996). The rationale for this practice is that these entities acquire a significantly protectable interest through their extensive involvement in the regulatory process. This rationale extends to MANA, and the second criteria for intervention as MOTION TO INTERVENE AND SUPPORTING MEMORANDUM C 08-03542 VRW - 8 -

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of right thus is met. 3. Disposition Of This Case May Affect MANA's Interests

It is unquestionable that disposition of this action may, as a practical matter, impair or impede MANA's ability to protect its interests in endosulfan. If the Plaintiffs obtain the rereview of the endosulfan RED that they seek, substantial burdens would be placed on MANA. Gur Decl. ¶ 13. Uncertainty about the future availability of endosulfan products likely will lead potential customers to switch to substitutes. Id. MANA also would be forced to incur additional cost to defend the continued registration of endosulfan. Id. Furthermore, the end result of EPA's re-review of the RED could be the imposition of additional restrictions on the distribution or use of endosulfan-containing products, or even a total ban on the sale of such products. Id. ¶ 14. Needless to say, either result would impair the value of MANA's registrations, cause substantial sales losses, and destroy the value of much of its investment in the studies that enabled MANA to obtain and maintain its registrations. Id. Alternatively, EPA could reregister endosulfan on the condition that MANA conduct even more studies on the pesticide's safety. Id. Depending on the number and types of studies EPA required, the cost of meeting such a condition on reregistration may be so great that MANA would have no choice but to cancel or narrow its registrations. Id. In short, the disposition of this action will "as a practical matter impair or impede" MANA's ability to protect its interests in endosulfan. Therefore, the third element of the Ninth Circuit's four-part test for intervention as of right is satisfied. 4. The Existing Parties Do Not Adequately Represent MANA's Interests

The final condition for intervention as of right is that the representation of a proposed intervenor's interests by the existing parties "may be" inadequate. The Supreme Court has stated that the burden of making a showing of inadequacy should be treated as "minimal." Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972); see also Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 823 (9th Cir. 2001). The courts have recognized that governmental representation of the interests of private parties is often inadequate. Governmental agencies have a broad responsibility to represent the MOTION TO INTERVENE AND SUPPORTING MEMORANDUM C 08-03542 VRW - 9 -

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public interest, whereas private companies often have a more narrow and "parochial" financial interest not shared by the public at large. See, e.g., Forest Conservation Council v. United States Forest Serv., 66 F.3d 1489, 1498-99 (9th Cir. 1995); Fund for Animals v. Norton, 322 F.3d 728, 736 (D.C. Cir. 2003). Moreover, MANA routinely conducts research on the pesticides it registers and manufactures and thus has special expertise that makes it uniquely able to both defend endosulfan's safety and accurately delineate the pesticide's likely effects on human health and the environment. Gur Decl. ¶ 11. Furthermore, MANA has experience and knowledge in the complex business of supplying endosulfan products that EPA does not have. Id. ¶ 1; see Natural Res. Def. Council v. Costle, 561 F.2d 904, 912-13 (D.C. Cir. 1977). MANA thus "can reasonably be expected to contribute to the informed resolutions of these [technical and complex] questions when, and if, they arise before the District Court," and its participation in defense of the endosulfan RED will "serve as a vigorous and helpful supplement to EPA's defense." Costle, 561 F.2d at 912-13. In addition, while MANA supports the endosulfan RED, its interest in endosulfan is different from that of EPA, and thus could lead MANA to take different positions from the Agency in litigation. MANA has focused financial interests in defending the endosulfan RED. In contrast, EPA would face a potential conflict of interest were it to represent both the general interests of U.S. citizens and the financial interests of MANA. The courts have found this potential for conflict sufficient to meet the "minimal" burden of demonstrating inadequacy of representation. See, e.g., Forest Conservation Council v. United States Forest Serv., 66 F.3d 1489, 1499 (9th Cir. 1995) (finding proposed intervenors satisfied the minimal showing required for inadequacy of representation because, in part, "the government must present the broad public interest, not just the economic concerns of the [proposed intervenors]"); Dimond v. District of Columbia, 792 F.2d 179, 192-93 (D.C. Cir. 1986). Indeed, in the particular context of pesticides regulation, the inadequacy standard is met even in cases where EPA and pesticide manufacturers appear to have interests that are directly aligned. See Natural Res. Def. Council v. EPA, 99 F.R.D. 607, 610 (D.D.C. 1983) (concerning MOTION TO INTERVENE AND SUPPORTING MEMORANDUM C 08-03542 VRW - 10 -

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regulatory reform measures for pesticides). This is because EPA's broader goal in challenges to its pesticides regulations is "defending [the] policies and procedures that it utilizes in regulating many potential harmful substances . . . ," while the manufacturer would have "interests [that] are more narrowly focused on proceedings relating to the particular pesticide [it] manufacture[s]" and thus will wish to maximize its opportunities to prove that its products are safe. Id. Furthermore, a time may come in this action when the interests of EPA and MANA diverge, and any purported EPA representation of MANA's interests would become inadequate. See id. For example, EPA may desire to reach a settlement with the Plaintiffs that would severely restrict endosulfan's uses or even phase the pesticide out. MANA may not share the same goals. For the foregoing reasons, MANA cannot rely on EPA to adequately protect its interests. Therefore, the fourth criterion for intervention as of right is met, and this Court should grant MANA's motion. B. Permissive Intervention Should Be Granted

Alternatively, MANA should be granted permissive intervention. Federal Rule of Civil Procedure 24(b)(2) sets forth the standard that governs permissive intervention. Under Rule 24(b)(2), a third party seeking to intervene permissively must show: (1) that its application is timely and (2) that its claim or defense and the main action have a question of law or fact in common. The Rule differs from Rule 24(a)(2) in that a "significant protectable interest" is not required for permissive intervention, nor is there a requirement that the proposed intervenor have a "direct personal or pecuniary interest" in the case. See Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1108 (9th Cir. 2002) (concerning attempt to intervene in two actions challenging United States Forest Service's roadless area conservation rule). MANA's application for intervention meets Rule 24(b)(2)'s standard. As explained above, MANA's motion to intervene is timely and will not result in any prejudice to the existing parties. Moreover, MANA is obviously affected by litigation that could result in significant changes to, or cancellation of, pesticide registrations that it holds. Also, as is clear from MANA's proposed answer, MANA raises many questions of law and fact in its defense that also are material to the main action. MOTION TO INTERVENE AND SUPPORTING MEMORANDUM C 08-03542 VRW - 11 -

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In Kootenai Tribe, the Ninth Circuit held that private environmental groups lacked the significant protectable interest necessary to intervene as of right. Id. at 1108. However, the Court affirmed the district court's grant of permissive intervention, agreeing that "the magnitude of [the] case is such that both Applicants' intervention will contribute to the equitable resolution of [the] case." Id. at 1111. This case also concerns issues of large magnitude. Endosulfan is a popular pesticide that is used on a wide variety of agricultural crops. Moreover, MANA generates substantial revenue from endosulfan sales. Thus, the outcome of this case has potentially significant ramifications for the U.S. agricultural economy and for MANA. Consequently, MANA should be allowed to participate in this case. IV. CONCLUSION For the foregoing reasons, MANA respectfully requests that its Motion to Intervene be granted.

DATED: August 20, 2008

HELLER EHRMAN LLP By: /s/ Laurence A. Weiss [email protected] HELLER EHRMAN LLP 275 Middlefield Road Menlo Park, CA 94025-3506 Telephone: 650.324.7000 Facsimile: 650.324.0638

David B. Weinberg (D.C. Bar # 186247) (Pending pro hac vice) [email protected] Eric Andreas (D.C. Bar # 462777) [email protected] David E. Markert (D.C. Bar #502486) [email protected] WILEY REIN LLP 1776 K Street NW Washington, DC 20006 Telephone: 202.719.7000 Facsimile: 202.719.7049

Attorneys for Intervenor-Defendant Makhteshim Agan of North America, Inc.

12889211.3

MOTION TO INTERVENE AND SUPPORTING MEMORANDUM C 08-03542 VRW - 12 -

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA PESTICIDE ACTION NETWORK NORTH AMERICA, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant. ) ) ) ) ) ) ) ) ) ) ) )

Case No. C 08-03542 VRW [PROPOSED] ORDER

THIS MATTER having come before the Court upon the Motion of Makhteshim Agan of North America, Inc. to Intervene as Party Defendant ("Motion"), the Court having considered the parties' submissions related thereto, and it appearing that good cause exists for this order, now, therefore IT IS HEREBY ORDERED that the Motion is GRANTED and the clerk is directed to file the proposed Answer. DATED this _____ day of _____, 2008.

VAUGHN R. WALKER United States District Judge

[Proposed] Order Granting Makhteshim Agan of North America, Inc.'s Motion To Intervene