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

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

IN RE PESTICIDE ACTION NETWORK No. 14-72794
NORTH AMERICA; NATURAL
RESOURCES DEFENSE COUNCIL, INC.,

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

v.

U.S. ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.

Filed August 12, 2016

Before: Diarmuid F. O’Scannlain, A. Wallace Tashima,
and M. Margaret McKeown, Circuit Judges.
2 IN RE PESTICIDE ACTION NETWORK N. AM.

SUMMARY*

Environmental Law

The panel denied the United States Environmental
Protection Agency’s request for an additional six months to
take final action on its proposed revocation rule and its final
response to Pesticide Action Network North American and
Natural Resources Defense Counsel’s 2007 administrative
petition.

The panel held that the requested six-month delay was not
justified in light of the EPA’s history in the matter, as well of
the court’s previous extensions. The panel directed the EPA
to take final action by March 31, 2017. The panel retained
jurisdiction over any further related proceedings.

COUNSEL

Patti A. Goldman and Kristen Boyles, Earthjustice, Seattle,
Washington, for Petitioners.

Erica M. Zilioli, Environmental Defense Section; John C.
Cruden, Assisant Attorney General, Environment & Natural
Resources Division; United States Department of Justice,
Washington, D.C.; Mark Dyner, Office of General Counsel;
United States Environmental Protection Agency, Washington,
D.C.; for Respondents.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 IN RE PESTICIDE ACTION NETWORK N. AM. 3

Stanley H. Abramson, Donald C. McLean, Kathleen R.
Heilman, and Sylvia G. Costelloe, Arent Fox LLP,
Washington, D.C., for Amici Curiae CropLife America,
Agricultural Retailers Association, Almond Alliance of
California, American Soybean Association, Beet Sugar
Development Foundation, California Citrus Mutual, National
Agricultural Aviation Association, National Corn Growers
Association, National Cotton Council, National Potato
Council, National Sorghum Producers, Oregonians for Food
& Shelter, Schertz Aerial Service Inc., U.S. Apple
Association, Washington Friends of Farms & Forests, and
Western Growers Association.

ORDER

Citing “extraordinary circumstances,” the United States
Environmental Protection Agency (“EPA”) requests an
additional six month extension to take final action on its
proposed revocation rule and its final response to Pesticide
Action Network North America and Natural Resources
Defense Council’s (collectively, “PANNA”) 2007
administrative petition. CropLife and the other amici would
double that extension. PANNA asks us to deny the EPA’s
request in light of the nearly decade-long delay in issuance of
the rule and the documented health risks.

The “extraordinary circumstances” claimed this time—
that EPA issued its proposed rule before completing two
studies that may bear on the Agency’s final rule—is another
variation on a theme “of partial reports, missed deadlines, and
vague promises of future action” that has been repeated for
the past nine years. In re Pesticide Action Network, 798 F.3d
809, 811 (9th Cir. 2015). EPA’s continued delay is all the
4 IN RE PESTICIDE ACTION NETWORK N. AM.

more significant since there are “considerable human health
interests prejudiced by it.” Id. at 814.

EPA’s nine-year delay in taking action was “objectively
extreme” when we received PANNA’s petition for
mandamus, and nothing has changed that would justify
EPA’s continued failure to respond to the pressing health
concerns presented by chlorpyrifos. While we acknowledge
that “evidence may be imperfect . . . the feasibility inquiry is
formidable, and . . . premature rulemaking is undesirable”,
Public Citizen Health Research Grp. v. Chao, 314 F.3d 143,
154–55 (3d Cir. 2002), at this stage, a claim of premature
rulemaking has come and gone. The requested six-month
delay is not justified in light of EPA’s history in this matter
as well as the court’s previous extensions.

EPA’s request for an additional six months to take final
action is DENIED. EPA is directed to take final action by
March 31, 2017. This is the final extension, and the court
will not grant any further extensions.

The panel shall retain jurisdiction over any further
proceedings related to this petition.