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 July 18, 2017

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

SUMMARY*

Mandamus

The panel denied the motion for further mandamus relief
filed by Pesticide Action Network North America and Natural
Resources Defense Council, which alleged that the United
States Environmental Protection Agency (“EPA”)’s denial of
the Council’s administrative petition, seeking to revoke all
food tolerances and cancel all registration of a pesticide
called chlorpyifos, was inadequate.

In a published order on August 10, 2015, the panel
ordered EPA to respond to the Council’s administrative
petition. In a subsequent published order, the panel directed
EPA to take “final action” by March 31, 2017. The EPA
denied the Council’s petition on March 29, 2017.

The Council filed the present mandamus motion asserting
that EPA’s denial was inadequate because it contained no
new safety findings, and made no final determination as to
whether chlorpyifos food tolerances must be revoked.

The panel held that EPA had complied with the panel’s
previous orders by issuing a “final response to the petition.”
The panel further held that the Council’s mandamus motion
was premature, and its substantive objections to the EPA’s
denial must first be made through the administrative process
mandated by statute.

*
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

COUNSEL

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

Erica M. Zilioli, Environmental Defense Section; Jeffrey H.
Wood, Acting Assistant 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.

Stanley H. Abramson, Donald C. McLean, Kathleen R.
Heilman, and Sylvia G. Costelloe, Arent Fox LLP,
Washington, D.C., for Amici Curiae Dow Agrosciences LLC.

ORDER

In 2007, Pesticide Action Network North America and
Natural Resources Defense Council (collectively, “PANNA”)
filed an administrative petition with the United States
Environmental Protection Agency (“EPA”). The petition
sought to revoke all food tolerances and cancel all registration
of a pesticide called chlorpyifos. In 2014, having grown
frustrated with EPA’s inertia, PANNA petitioned this court
for a writ of mandamus to force the agency to issue a
response, which PANNA acknowledged could include “a
final denial order . . . if that is how EPA decides to resolve
[it].”

On August 10, 2015, we ordered EPA to “issue either a
proposed or final revocation rule or a full and final response”
to PANNA’s administrative petition. In re Pesticide Action
4 IN RE PESTICIDE ACTION NETWORK N. AM.

Network N. Am., 798 F.3d 809, 814 (9th Cir. 2015) (emphasis
added). We later directed EPA to “take final action” on the
petition by March 31, 2017. In re Pesticide Action Network
N. Am., 840 F.3d 1014, 1015 (9th Cir. 2016).

EPA denied the petition on March 29, 2017. See 82 Fed.
Reg. 16,581 (Apr. 5, 2017). PANNA promptly filed a motion
for “further mandamus relief,” asserting that EPA’s denial
was inadequate because it contained “no new safety findings”
and no “final determination as to whether chlorpyifos food
tolerances must be revoked.” In short—and in its own
words—PANNA’s motion faulted EPA for “fail[ing] to act
on the substance of the petition.”

PANNA’s complaints arrive at our doorstep too soon.
Although we previously condemned EPA’s “egregious” delay
in responding to PANNA’s petition, the agency has now
complied with our orders by issuing a “final response to the
petition.” See In re Pesticide Action Network N. Am.,
798 F.3d at 811; see also 21 U.S.C. § 346a(d)(4)(A)(iii)
(providing that one valid agency response to a petition
challenging a pesticide’s tolerances is to “issue an order
denying the petition”).

These mandamus proceedings have addressed the timing,
not the substance, of EPA’s response. See In re Pesticide
Action Network N. Am., 798 F.3d at 813 (“The only question
before us is whether EPA’s delay in responding to the
administrative petition warrants the extraordinary remedy of
mandamus.”). Now that EPA has issued its denial,
substantive objections must first be made through the
administrative process mandated by statute. See 21 U.S.C.
§§ 346a(g)(2), (h)(1); 40 C.F.R. §§ 178.65, 180.30(b).
PANNA implicitly recognizes as much by acknowledging
 IN RE PESTICIDE ACTION NETWORK N. AM. 5

that “[f]iling objections and awaiting their resolution by the
EPA Administrator is a prerequisite to obtaining judicial
review” of EPA’s final response to the petition. Only at that
point may we consider the merits of EPA’s “final agency
action.” See 5 U.S.C. § 704. Although EPA dragged its heels
for nearly a decade, it has now done what we ordered it to do.

PANNA’s motion for further mandamus relief is
DENIED.