Pesticide Action Network North America v. U.S. Environmental Protection Agency

FILED
FOR PUBLICATION AUG 10 2015

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: PESTICIDE ACTION NETWORK No. 14-72794
NORTH AMERICA; NATURAL
RESOURCES DEFENSE COUNCIL,
INC.,
OPINION

PESTICIDE ACTION NETWORK
NORTH AMERICA; NATURAL
RESOURCES DEFENSE COUNCIL,
INC.,

Petitioners,

v.

U.S. ENVIRONMENTAL PROTECTION
AGENCY,

Respondent.

Petition for a Writ of Mandamus
To the Environmental Protection Agency
Argued and Submitted June 1, 2015
Seattle, Washington

Before: O’SCANNLAIN, TASHIMA, and McKEOWN, Circuit Judges.

Opinion by Judge McKEOWN, Circuit Judge:
 Although filibustering may be a venerable tradition in the United States

Senate, it is frowned upon in administrative agencies tasked with protecting human

health. Pesticide Action Network North America and the Natural Resources

Defense Council have been waiting for years for the United States Environmental

Protection Agency to respond to their administrative petition requesting a ban on

the pesticide chlorpyrifos. Instead, they’ve received a litany of partial status

reports, missed deadlines, and vague promises of future action. We recognize the

scientific complexity inherent in evaluating the safety of pesticides and the

competing interests that the agency must juggle. However, EPA’s ambiguous plan

to possibly issue a proposed rule nearly nine years after receiving the

administrative petition is too little, too late. This delay is egregious and warrants

mandamus relief. We order EPA to issue a full and final response to the petition

no later than October 31, 2015.

BACKGROUND

EPA is tasked with registering all pesticides. A pesticide may be registered

only if EPA finds that it is “safe,” meaning that “there is a reasonable certainty that

no harm will result from aggregate exposure to the pesticide chemical residue,

including all anticipated dietary exposures and all other exposures for which there

is reliable information.” 21 U.S.C. § 346a(b)(2)(A)(ii). EPA may “revoke” a

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pesticide’s registration whenever it determines that its use does not meet safety

standards. Id. § 346a(b)(2)(A)(i).

The Food Quality Protection Act of 1996, Pub. L. No. 104-170, directed

EPA to take a fresh look at the safety of existing pesticides. The statute required

EPA to examine every pesticide then in use to ensure compliance with relevant

safety standards. The Act gave EPA ten years to complete an initial review of

registered pesticides, 21 U.S.C. 346a(q)(1), and ordered the agency to repeat the

process using updated scientific data every fifteen years, 7 U.S.C.

§ 136a(g)(1)(A)(iii).

During this initial review, EPA determined that the pesticide at issue here,

chlorpyrifos, was not being used in an altogether safe manner. In 2000, EPA

announced an agreement with pesticide manufacturers to ban the application of

chlorpyrifos in residential areas. Carol M. Browner, Dursban Announcement (June

8, 2000), http://www2.epa.gov/aboutepa/dursban-announcement. Soon after, the

agency issued both interim and final decisions permitting the continued use of

chlorpyrifos in agricultural areas.

Pesticide Action Network North America and the Natural Resources

Defense Council (collectively Pesticide Action Network) vehemently disagree with

EPA’s assessment that chlorpyrifos is safe. Alleging that EPA ignored evidence of

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the pesticide’s toxicity, Pesticide Action Network joined a federal lawsuit to block

the use of chlorpyrifos for any purpose. Complaint, United Farm Workers v.

Adm’r, EPA, No. 5:07-CV-3950-JF (N.D. Cal. Aug. 1, 2007), ECF No. 1. That

suit was dismissed as time-barred after we clarified the jurisdictional requirements

for challenging EPA’s pesticide safety determinations. Dismissal Order, United

Farm Workers v. Adm’r, EPA, No. 5:07-CV-3950-JF (N.D. Cal. Apr. 27, 2010),

ECF No. 98 (citing United Farm Workers v. Adm’r, EPA, 592 F.3d 1080 (9th Cir.

2010)).

Pesticide Action Network also filed an administrative petition with EPA in

September 2007 (“the administrative petition”). EPA published a notice of that

petition in the Federal Register, 72 Fed. Reg. 58,845 (Oct. 17, 2007), but otherwise

did not issue any formal response to it. In July 2010 Pesticide Action Network

filed suit in federal district court in New York demanding a final response to the

administrative petition. Complaint, N.R.D.C. v. EPA, No. 10-CV-05590 (S.D.N.Y.

July 22, 2010), ECF No. 1. Five months later, EPA and Pesticide Action Network

filed a stipulation staying the suit based on EPA’s promise that it would issue a

human health risk assessment by June 2011 and a final response by November

2011. Stipulation and Order, N.R.D.C. v. EPA, No. 10-CV-05590 (S.D.N.Y. Dec.

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22, 2010), ECF No. 17. EPA was a month late in issuing the human health risk

assessment and failed to publish a final response to the administrative petition.

In April 2012, Pesticide Action Network filed a petition for a writ of

mandamus in the Ninth Circuit (“the 2012 mandamus petition”).1 EPA responded

by publishing a partial denial of the administrative petition and stating that it would

finalize its response to the remaining issues raised in the petition between

“February 2013, should it issue a complete denial of the administrative petition,

[and] February 2014, should it decide either to issue a proposed rule, or a final rule

without prior proposal, to revoke or modify the existing chlorpyrifos tolerances.”

EPA’s Response to Petition for Writ of Mandamus at 29, In Re Pesticide Action

Network North America, No. 12-71125 (9th Cir. July 24, 2012).

After mediation efforts failed to yield a resolution, we denied the 2012

mandamus petition. In re Pesticide Action Network N. Am., 532 F. App’x 649 (9th

Cir. 2013). In concluding that mandamus relief was inappropriate at that time, we

noted that EPA had a “concrete timeline” for issuing a final response by February

2014, and made clear that “our denial of the petition is without prejudice to seeking

the same relief at a future date in the event EPA fails to act.” Id. at 651–52.

1
The New York proceedings were subsequently dismissed.

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 As an astute reader might have guessed, EPA’s timeline proved not to be

“concrete.” When EPA failed to issue a final response to the administrative

petition in February 2014 as promised, Pesticide Action Network filed a renewed

petition for a writ of mandamus in September 2014, which is the subject of this

opinion. While that petition was pending, EPA issued a preliminary final denial of

the administrative petition on January 14, 2015. 80 Fed. Reg. 1909–11 (Jan. 14

2015). EPA initially informed us that it would finalize its response to the

administrative petition in “summer 2015,” but later backtracked and cautioned that

it was unlikely to meet that deadline.

We heard oral argument on June 4, 2015. In response to questioning

regarding when EPA intended to issue a final response to the administrative

petition, counsel for EPA was unable to offer a firm date. However, counsel stated

that EPA would know by June 30 whether the public comments received in

response to its preliminary final denial of the administrative petition necessitated

further proceedings. We thus ordered EPA to inform the court of the date by

which it intended to either “finalize the preliminary denial of [the] administrative

petition” or issue any other “final ruling” in this matter. In Re Pesticide Action

Network N. Am., 790 F.3d 875 (9th Cir. June 10, 2015).

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 In response to that order, EPA asserted that its concerns about contamination

of drinking water had convinced it to take more aggressive action to restrict

chlorpyrifos. EPA stated that its current plan is to publish, before April 15, 2016, a

proposed rule to “revoke all chlorpyrifos tolerances”—in essence, to impose an

outright ban on the pesticide. In that update, however, EPA also noted that certain

labeling changes could render such action “unnecessary.” Dissatisfied with the

uncertainty of EPA’s response, Pesticide Action Network reiterated its request that

we issue a writ of mandamus compelling EPA to issue a “final” ruling on the

administrative petition.

ANALYSIS

The only question before us is whether EPA’s delay in responding to the

administrative petition warrants the extraordinary remedy of mandamus. We

conclude that it does. EPA has spent nearly a decade reviewing Pesticide Action

Network’s data and arguments. Even in response to our unambiguous order

directing EPA to specify a date for issuing a “final ruling” on the administrative

petition, the agency has still not stated with certainty when it intends to take formal

action to grant or deny it. Issuing a writ of mandamus is necessary to end this

cycle of incomplete responses, missed deadlines, and unreasonable delay.

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 The legal standard governing our analysis is neither complex nor contested

by the parties. The Administrative Procedure Act instructs agencies to complete

their work “within a reasonable time,” and grants courts of appeal the authority to

“compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C.

§§ 555(b), 706(1). Our authority to issue a writ of mandamus is contained in the

All Writs Act, 28 U.S.C. § 1651. Issuing a writ of mandamus directing a federal

agency to act, however, is “an extraordinary remedy justified only in ‘exceptional

circumstances.’” In re Cal. Power Exch. Corp., 245 F.3d 1110, 1120 (9th Cir.

2001) (quoting Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271,

289 (1988)). Mandamus is warranted in those rare instances when the agency’s

delay is “egregious.” Id. at 1124 (internal quotation marks omitted).

Our inquiry is governed by the six-factor test articulated in

Telecommunications Research and Action Center v. F.C.C., 750 F.2d 70 (D.C. Cir.

1984), known as the “TRAC factors.” See Cal. Power Exch. Corp., 245 F.3d at

1124–25. These factors are:

(1) the time agencies take to make decisions must be governed by a
rule of reason;

(2) where Congress has provided a timetable or other indication of the
speed with which it expects the agency to proceed in the enabling
statute, that statutory scheme may supply content for this rule of
reason;

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 (3) delays that might be reasonable in the sphere of economic
regulation are less tolerable when human health and welfare are at
stake;

(4) the court should consider the effect of expediting delayed action
on agency activities of a higher or competing priority;

(5) the court should also take into account the nature and extent of the
interests prejudiced by delay; and

(6) the court need not find any impropriety lurking behind agency
lassitude in order to hold that agency action is unreasonably delayed.

TRAC, 750 F.2d at 79–80 (citations and internal quotation marks omitted).

Two years ago, in July 2013, we applied the TRAC factors to Pesticide

Action Network’s 2012 mandamus petition and found that they did not yet weigh

in favor of judicial action. We explained that the “complexity of the issue”

justified EPA’s delay in answering the petition, and noted that the agency had

many competing priorities consuming its resources. In re Pesticide Action

Network, 532 F. App’x at 651. Although Pesticide Action Network alleged that

chlorpyrifos harmed human health and safety, the urgency of action was mitigated

somewhat because EPA “regulates almost entirely in the realm of human health”

and had certified the safety of chlorpyrifos in 2006. Id. Critically, we recognized

that issuing a writ was unnecessary in light of EPA’s “concrete timeline” for

finally resolving the petition in “February 2014.” Id.

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 EPA would have us adhere to the reasoning and holding of our prior

disposition. But time changes things, including our weighing of the TRAC factors.

First and foremost, the “rule of reason” has tipped sharply in favor of

Pesticide Action Network. Two years ago, EPA had been considering the

administrative petition for six years and had a “concrete timeline” for issuing a

final ruling in a matter of months. Now, the delay has stretched to eight years, and

when we asked EPA to specify the precise date by which it would issue a “final

ruling” on Pesticide Action Network’s petition, it demurred. Instead, EPA told us

it intends to initiate a proposed rulemaking next year, in April 2016. Not only is a

proposed rulemaking not a final ruling, EPA also indicated that it might not issue

such a rule at all if settlement discussions with industry are fruitful. These

prospective conversations introduce yet another uncertainty in the process. What’s

more, EPA’s latest status report says that it has “concerns about the risks to

farmworkers” who are exposed to chlorpyrifos and states that “complex regulatory

proceedings” may be necessary. Yet EPA does not offer a timetable for

concluding or even initiating those proceedings. EPA’s response isn’t a “concrete

timeline” for resolving the petition—it’s a roadmap for further delay. EPA has

stretched the “rule of reason” beyond its limits.

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 Another factor that has moved the needle is the threat posed by chlorpyrifos

to human health. Although EPA determined that chlorpyrifos was “safe” in 2006,

it has backtracked significantly from that pronouncement over the last several

years. EPA recently imposed new labeling requirements on the chemical, and in

its latest status report, EPA reported that chlorpyrifos poses such a significant

threat to water supplies that a nationwide ban on the pesticide may be justified.

We do not take this representation lightly. Yet EPA offers no acceptable

justification for the considerable human health interests prejudiced by the delay. In

view of EPA’s own assessment of the dangers to human health posed by this

pesticide, we have little difficulty concluding it should be compelled to act quickly

to resolve the administrative petition.

Finally, although there is no allegation of impropriety underlying EPA’s

delay, we note that the agency has a significant history of missing the deadlines it

has set in these proceedings. The D.C. Circuit’s comment in Public Citizen Health

Research Group v. Brock seems particularly apt here: “In light of the fact that [the

agency’s] timetable representations have suffered over the years from a persistent

excess of optimism, we share petitioners’ concerns as to the probable completion

date.” 823 F.2d 626, 629 (D.C. Cir. 1987) (per curiam). EPA’s unreasonable

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delay in responding to the administrative petition has already been the subject of

three non-frivolous lawsuits. There should not be a fourth.

CONCLUSION AND ORDER

The petition for a writ of mandamus is granted.2 EPA is directed to issue

either a proposed or final revocation rule or a full and final response to the

administrative petition by October 31, 2015. If EPA chooses to issue a proposed

revocation rule, it shall inform the court by October 31, 2015, of the timeline for

finalizing the proposed rule. The court will consider modification of this deadline

only if EPA documents that extraordinary circumstances not already presented to

the court will prevent its compliance.

The petition for a writ of mandamus is GRANTED.

2
Petitioners’ Bill of Costs, filed June 17, 2015, is denied as moot.

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 COUNSEL OF RECORD

Patti A. Goldman (argued), Matthew Baca, and Kristen Boyles, Earthjustice,
Seattle, WA, for Petitioners.

Sam Hirsche, Acting Assistant Attorney General, and Erica Zilioli (argued), United
States Department of Justice, Environmental Enforcement Section, Washington,
D.C.; Mark Dyner, Office of General Counsel, United States Environmental
Protection Agency, Washington, D.C., for Respondents.

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