Attention, administrative-law wonks and honeybee lovers. In a ruling today (in Center for Food Safety v. Regan), a unanimous Ninth Circuit panel held that the Environmental Protection Agency acted unlawfully by failing to engage in consultation or provide public notice and an opportunity to comment before it approved the expanded use of the sulfoxaflor pesticide. This whole matter apparently relates back to an application that Dow Agrosciences made in 2010 to obtain EPA approval for sulfoxaflor. In 2015, a separate Ninth Circuit panel vacated EPA’s approval of sulfoxaflor because of Dow’s flawed and limited data for honeybees.

The buzz in today’s ruling is between the majority (Judge Kenneth Lee, joined by Judge Diarmuid O’Scannlain) and concurring judge Eric Miller over whether the EPA’s legal violations should lead the panel to vacate the EPA’s 2019 registration of sulfoxaflor. The majority holds “reluctantly” that remand without vacatur is warranted, and it directs the EPA to do things right within 180 days. (Slip op. at 29-41.) Judge Miller, by contrast, concludes that the “normal practice” of vacating an agency’s unlawful action should be followed. (Slip op. at 42-50.) I’ll leave it to interested readers to sort through the competing arguments.

For those keeping score at home, Lee and Miller are both Trump appointees, and O’Scannlain was appointed by Ronald Reagan.