Nrdc v. Usepa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NATURAL RESOURCES DEFENSE No. 20-72794
COUNCIL,
Petitioner, EPA No.
EPA-HQ-OPP-
v. 2009-0308

U.S. ENVIRONMENTAL PROTECTION
AGENCY; MICHAEL S. REGAN, in his OPINION
official capacity as Administrator of
the United States Environmental
Protection Agency,
Respondents,

THE HARTZ MOUNTAIN
CORPORATION,
Respondent-Intervenor.

On Petition for Review of an Order of the
Environmental Protection Agency

Argued and Submitted November 22, 2021
San Francisco, California

Filed April 20, 2022
2 NRDC V. USEPA

Before: Mary H. Murguia, Chief Judge, and R. Guy
Cole, Jr. * and Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould

SUMMARY **

Pesticides

The panel vacated the U.S. Environmental Protection
Agency’s (“EPA”) denial of Natural Resources Defense
Council (“NRDC”)’s petition to cancel the registration of the
pesticide tetrachlorvinphos (“TCVP”), and remanded for a
revised EPA response within 120 days.

Under the Federal Insecticide, Fungicide, and
Rodenticide Act, pesticides sold in the United States
generally must be registered by the EPA. Private parties can
petition the EPA to cancel the registration of a pesticide, and
the EPA is required to resolve those petitions “within a
reasonable time.” 5 U.S.C. § 555(b). The EPA last approved
the use of TCVP pesticide in pet products in 2006. In 2009,
NRDC petitioned the EPA to cancel the registration of
TCVP for use in household pet products. After repeated
delays, the EPA eventually denied NRDC’s petition.

*
The Honorable R. Guy Cole, Jr., United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 NRDC V. USEPA 3

The panel held that the EPA’s denial of NRDC’s petition
was not supported by substantial evidence. The EPA failed
to provide a reasoned explanation for its denial of NRDC’s
petition and made several arbitrary calculations. The EPA’s
errors primarily impacted two calculations central to its
denial of NRDC’s petition: (1) the amount of TCVP dust
released by the pet collars, and (2) the assumption that pet
owners will trim the collars by at least 20%. The EPA
without any explanation rejected a central finding of a study
– the Torison Study – that it repeatedly stated was a key to
its determination. In its brief before this court, the EPA for
the first time gave a justification for its decision to reject the
Torison Study’s finding that 97.2% of the dust released from
the collars comprises TCVP. The panel held that it could
only uphold agency action based on the reasons the agency
gave for its decision. The panel held further that the EPA’s
assumption that only 14.6% of the dust released from the
collars was TCVP – instead of the Torison Study’s
measurement of 97.2% – was also troubling on the merits.
The panel held that it would not defer to the EPA’s highly
inaccurate calculation that pet owners will trim pet collars
by 20% when fitting the collar onto a pet’s neck. The panel
concluded that it was apparent that the EPA’s denial of
NRDC’s petition was simply not supported by substantial
evidence when considered on the record as a whole.
4 NRDC V. USEPA

COUNSEL

Peter J. DeMarco (argued) and Aaron Colangelo, Natural
Resources Defense Council, Washington, D.C.; Ian Fein,
Natural Resources Defense Council, San Francisco,
California; for Petitioner.

Gus Maxwell (argued), Attorney; Jean E. Williams, Acting
Assistant Attorney General; Environment and Natural
Resources Section, United States Department of Justice,
Washington, D.C.; Benjamin Wakefield and Erin Koch,
Attorneys, United States Environmental Protection Agency,
Washington, D.C.; for Respondents.

Amanda Shafer Berman (argued), Kirsten L. Nathanson, and
Michael Boucher, Crowell & Moring LLP, Washington,
D.C., for Respondent-Intervenor.

OPINION

GOULD, Circuit Judge:

The Natural Resources Defense Council (“NRDC”)
again asks us to intervene in its thirteen-year dispute with the
Environmental Protection Agency (“EPA”) regarding
whether EPA is fulfilling its statutory duty to properly assess
the risks of the pesticide tetrachlorvinphos (“TCVP”). After
we granted NRDC’s writ of mandamus in April 2020, which
required EPA to issue a final response to NRDC within
90 days, EPA denied NRDC’s petition to cancel the
registration of TCVP. NRDC now argues that EPA erred
when it denied the petition because EPA failed to provide an
adequate explanation for its decision and relied on several
mistaken calculations. Because EPA’s denial of NRDC’s
 NRDC V. USEPA 5

petition lacks substantial evidence, we vacate EPA’s denial
and remand for a revised EPA response within 120 days.

I. BACKGROUND

Under the Federal Insecticide, Fungicide, and
Rodenticide Act, pesticides sold in the United States
generally must be registered by EPA. See 7 U.S.C.
§ 136a(a). Private parties can petition EPA to cancel the
registration of a pesticide. 40 C.F.R. § 154.10. EPA is
required to resolve those petitions “within a reasonable
time.” 5 U.S.C. § 555(b).

EPA last approved the use of TCVP pesticide in pet
products in 2006. In 2009, NRDC petitioned EPA to cancel
the registration of TCVP for use in household pet products.
TCVP is a type of organophosphate pesticide.
Organophosphates “were developed from nerve warfare
agents used during World War II” and “pose recognized
dangers to the neurodevelopment of children, causing
reduced cognitive capacity, delays in motor development,
and behavioral problems.” In re Nat. Res. Def. Council, Inc.
(NRDC 2020), 956 F.3d 1134, 1136 (9th Cir. 2020). Of
concern here, TCVP is used in pet collars to prevent fleas
and ticks, and TCVP can be transferred to humans who come
into contact with pets wearing these collars. TCVP pet
collars are designed to release TCVP gradually onto pet fur
in either liquid or dust form. NRDC is concerned that TCVP
dust, which is more easily transferred to humans through
contact with pets than TCVP liquid, poses a particular risk
to young children who are more likely to put their hands in
their mouths and ingest TCVP after petting an animal
wearing a TCVP collar. Hartz Mountain Corporation
(“Hartz”) manufactures pet collars containing TCVP, and
EPA estimates that collars using alternative pesticides cost
five to six dollars more a month.
6 NRDC V. USEPA

After filing its petition in 2009, NRDC waited five years
for a response from EPA until it sought a writ of mandamus
to compel EPA’s answer in 2014. In November 2014, EPA
denied NRDC’s petition. NRDC then challenged the denial
of its petition in this Court as unlawful. A few months later,
EPA filed a motion for voluntary remand because it was
completing a new risk assessment that could change its
position regarding NRDC’s petition. EPA repeatedly
represented that it “intend[ed] to issue a revised response to
NRDC’s petition within 90 days after finalizing the [revised]
risk assessment.” Id. at 1137. Over NRDC’s objections, we
remanded without a deadline in June 2016. See Order, Nat.
Res. Def. Council v. U.S. EPA, No. 15-70025, ECF No. 30
(June 9, 2016.

In December 2016, EPA issued a revised risk
assessment, which found that TCVP exposure could lead to
health risks for young children (the “2016 Risk
Assessment”). The 2016 Risk Assessment “recognized that
children could be exposed to TCVP through contact with
pets using TCVP products and that such exposure posed
considerable risks to their health.” NRDC 2020, 956 F.3d
at 1137. The 2016 Risk Assessment found risks of concern
for children “regardless of the ratio of liquid/dust assumed.”
EPA represented that it would reply to NRDC’s petition
within 90 days and issued a press release stating that it had
“identified potential risks to people, including children, . . .
which exceed the Agency’s level of concern.” Id. at 1142.

EPA, however, did not issue a response to NRDC’s
petition within 90 days. Instead, two years after EPA’s self-
imposed deadline, NRDC sought a second writ of mandamus
from us to compel EPA to issue a final response to its
petition filed a decade earlier. EPA defended its delay by
stating that it needed additional data from Hartz, specifically
 NRDC V. USEPA 7

the results of a torsion study, which EPA had originally
requested in 2017. Five days after NRDC filed its second
request for a writ of mandamus, EPA for the first time
compelled Hartz to perform the torsion study (the “Torsion
Study”), which was completed in August 2019.

In April 2020, we granted NRDC’s second petition for a
writ of mandamus. We reprimanded EPA, stating

[T]he EPA’s years-long delay on this critical
matter of public health has been nothing short
of egregious. For more than a decade, the
EPA has frustrated NRDC’s ability to seek
judicial review by withholding final agency
action, all the while endangering the
wellbeing of millions of children and
ignoring its core mission of protecting human
health and the environment.

Id. at 1142–43 (internal citation omitted). We “order[ed] the
EPA to issue a full and final response to” NRDC within
90 days. Id. at 1143. Exactly 90 days after our ruling, EPA
again denied NRDC’s petition.

EPA based its denial on a revised risk assessment (the
“2020 Risk Assessment”) dated one day before it denied
NRDC’s petition. The 2020 Risk Assessment concluded
that all seven TCVP pet collars of Hartz then on the market
were unacceptably dangerous to human health because they
had a margin of exposure surpassing the threshold of
unacceptable risk, known as the Level of Concern (“LOC”).
In response, Hartz requested voluntary cancellation of one
of its feline collars and mitigated the exposure of TCVP on
its six remaining collars by amending their instructions,
reducing the amount of TCVP in the collars, and
implementing other design changes. With these changes,
8 NRDC V. USEPA

EPA determined that Hartz’s remaining and modified pet
collars did not exceed the LOC and therefore denied
NRDC’s petition. After Hartz’s modifications, TCVP
comprised roughly 14.6% of the remaining collars’ weight.

EPA’s denial of NRDC’s petition relied heavily on two
studies completed by Hartz. First, it relied on the Torsion
Study, which in part determined that: (1) 0.38% of the pet
collars’ total mass would be released as dust;
(2) approximately 97.2% of the dust released from the
collars consisted of TCVP; and (3) an average of 1.1% of the
TCVP in the collars was released as dust before any twisting.
Second, EPA relied on Hartz’s Normal Wear Study, which
measured the amount of TCVP and non-pesticides released
by the collars after they were worn by dogs for between one
and twenty-one days. Researchers wiped the collars after
each period of use, and then measured the amount of
released TCVP dust. In the Normal Wear Study, 4% of the
collars’ total observed weight loss was measured as TCVP
after three days.

NRDC timely challenged EPA’s denial of its petition.

II. STANDARD OF REVIEW

We review the denial of NRDC’s petition for
“substantial evidence when considered on the record as a
whole.” 7 U.S.C. § 136n(b). Substantial evidence is “more
than a mere scintilla but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Nat. Res. Def. Council v.
U.S. EPA (NRDC 2013), 735 F.3d 873, 877 (9th Cir. 2013)
(quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
1989)).
 NRDC V. USEPA 9

III. DISCUSSION

a. Legal Standard

“It is well-established that an agency’s action must be
upheld, if at all, on the basis articulated by the agency itself.”
Id. at 877 (quoting Motor Vehicle Mfrs. Ass’n of the U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50
(1983)). Courts do not “accept appellate counsel’s post-hoc
rationalizations for agency action.” Nat. Res. Def. Council
v. U.S. EPA (NRDC 2017), 857 F.3d 1030, 1040 (9th Cir.
2017) (quoting Hernandez-Cruz v. Holder, 651 F.3d 1094,
1109 (9th Cir. 2011)). “If the agency did not meet its burden,
we ‘should not attempt . . . to make up for such deficiencies’
and ‘may not supply a reasoned basis for the agency’s action
that the agency itself has not given.’” Ctr. for Biological
Diversity v. Haaland, 998 F.3d 1061, 1067 (9th Cir. 2021)
(quoting State Farm, 463 U.S. at 43).

Administrative law does not require agency perfection.
The agency’s decision, even if of “less than ideal clarity,”
will be upheld “if the agency’s path may reasonably be
discerned.” State Farm, 463 U.S. at 43. It is fundamental
that the agency must have “considered the relevant factors
and articulated a rational connection between the facts found
and the choices made.” Ctr. for Biological Diversity,
998 F.3d at 1067 (quoting Alaska Oil & Gas Ass’n v.
Pritzker, 840 F.3d 671, 675 (9th Cir. 2016)).
“Unsubstantiated” or “bare assumptions” will not be
credited. NRDC 2017, 857 F.3d at 1038, 1042; see also
Nat’l Parks Conservation Ass’n v. U.S. EPA, 788 F.3d 1134,
1143 (9th Cir. 2015) (“[U]nexplained assertions . . .
unsupported by any explained reasoning” were “arbitrary
and capricious”); Greater Yellowstone Coal., Inc. v.
Servheen, 665 F.3d 1015, 1020 (9th Cir. 2011) (requiring
agency to “articulate a rational connection between the data
10 NRDC V. USEPA

in the record and its determination”). Conversely, a “mere[]
. . . reasonable basis for disagreement” about the evidence
will not disturb an agency’s otherwise reasonable findings.
NRDC 2013, 735 F.3d at 880; see also ASARCO, Inc. v.
Occupational Safety & Health Admin., 746 F.2d 483, 490
(9th Cir. 1984).

Courts give special deference to agency interpretations
of scientific issues. NRDC 2017, 857 F.3d at 1036 (internal
citation omitted) (“When, as in this case, the agency is
making predictions, within its area of special expertise, at the
frontiers of science . . . a reviewing court must generally be
at its most deferential.”); United States v. Alpine Land &
Reservoir Co., 887 F.2d 207, 213 (9th Cir. 1989). Even so,
we do not credit “arbitrary and highly inaccurate
calculations.” Trs. of Cal. State Univ. v. Riley, 74 F.3d 960,
967 (9th Cir. 1996), as amended (Feb. 20, 1996).

b. Substantial evidence does not support EPA’s denial
of NRDC’s Petition

For the following reasons, we conclude that EPA’s
denial of NRDC’s petition is not supported by substantial
evidence. EPA failed to provide a reasoned explanation for
its denial of NRDC’s petition and made several arbitrary
calculations. EPA’s errors primarily impact two calculations
central to its denial of NRDC’s petition: (1) the amount of
TCVP dust released by the collars, and (2) the assumption
that pet owners will trim the collars by at least 20%. Further,
we cannot consider EPA’s post-hoc rationalizations, which
themselves suffer from numerous flaws.

i. The amount of TCVP dust released by the collars

When calculating the amount of TCVP dust released by
Hartz’s pet collars, EPA relied on only some of the Torsion
 NRDC V. USEPA 11

Study’s findings. In particular, EPA accepted the Torsion
Study’s finding that 0.38% of the collars’ total weight was
released as dust (and the rest released as liquid). However,
EPA did not use one of the Torsion Study’s other main
findings: that about 97.2% of the dust released from the
collars consisted of TCVP. Instead, EPA assumed that the
dust lost by the collars contained only 14.6% TCVP—an
amount equivalent to the percent of TCVP in the collars as a
whole. This second assumption, which directly contradicted
the results of the Torsion Study and was unexplained, had
the effect of significantly lowering EPA’s estimate of how
much TCVP dust was released by the collars.

EPA’s selective use of the Torsion Study is problematic
for several reasons. Before its denial of NRDC’s petition—
including in its briefing to us—EPA repeatedly emphasized
the importance of the Torsion Study, variously referring to it
as the “best means,” the “optimal method,” and “most
promising solution” for determining the physical form of the
TCVP released from the collars. 1 In assessing the study,
EPA further noted that “the purpose of the [Torsion Study]
was to measure the amount of solids (dust/powder) released
from a flea and tick collar and the active ingredient content

1
See EPA’s Opp. to NRDC Pet. for a Writ of Mandamus, NRDC v.
U.S. EPA, No. 19-71324, ECF No. 13 (Sept. 9, 2019), 15 (“EPA has
concluded that the best means of determining the form of TCVP released
from the collars is through a mechanical torsion study where the collar
is twisted and stretched repeatedly to exaggerate the movement of the
collar against the animal.”), 16 (“[T]he Agency continues to believe that
a mechanical torsion study is needed.”), 20 (“[T]he Agency has
determined that the optimal method for reducing the uncertainty relating
to the physical form of TCVP is to require the registrant to conduct a
composition study in the form of a mechanical torsion test.”), Reaves
Decl. ¶ 23 (“EPA has determined that the most promising solution for
identifying the physical form of TCVP released from each pet collar is
to require the registrant to conduct . . . a mechanical torsion study.”).
12 NRDC V. USEPA

of the released solids when the collar is exposed to
mechanical torsion and stress.” However, in sharp contrast
to its earlier statements, in its denial of NRDC’s petition and
in the 2020 Risk Assessment, EPA provides no explanation
for why it rejected the Torsion Study’s calculation of TCVP
dust released from the collars. This is despite its earlier
statements that the Torsion Study was the best method for
measuring the form of TCVP released by the collars.
Without any explanation, EPA’s rejection of a central
finding of a study it repeatedly stated was key to its
determination is troubling. See NRDC 2013, 735 F.3d
at 877.

In its brief, EPA for the first time gives a justification for
its decision to reject the Torsion Study’s finding that 97.2%
of the dust released from the collars comprises TCVP. EPA
now claims that it rejected this measurement because the
Torsion Study used “exaggerated twisting conditions . . .
[which] likely overrepresented the amount of [TCVP] in dust
extruded from the collars in normal use on pets.” Even
assuming EPA’s current rationale withstands scrutiny, it is
simply not contained in its denial of NRDC’s petition or in
its 2020 Risk Assessment. The law is clear that we can only
uphold agency action based on the reasons the agency gave
for its decision. See SEC v. Chenery Corp., 332 U.S. 194,
196 (1947) (“[A] reviewing court, in dealing with a
determination or judgment which an administrative agency
alone is authorized to make, must judge the propriety of such
action solely by the grounds invoked by the agency.”); Fed.
Power Comm’n v. Texaco Inc., 417 U.S. 380, 397 (1974).

Further casting doubt on its position, EPA’s brief
repeatedly argues that the Normal Wear Study provided
more reliable information about the amount of TCVP dust
that would be shed by the collars, citing this study
 NRDC V. USEPA 13

approximately 20 times. Again, though, EPA’s reliance on
the Normal Wear Study is new to its briefing: EPA only cited
the Normal Wear Study once (as part of a string cite in a
footnote with no explanation) in its petition denial and 2020
Risk Assessment. EPA’s newly-discovered explanations
appear to be “post-hoc rationalizations” that cannot support
a finding of substantial evidence. See NRDC 2017, 857 F.3d
at 1040 (quoting Hernandez-Cruz, 651 F.3d at 1109).

EPA’s assumption that only 14.6% of the dust released
from the collars is TCVP—instead of the Torsion Study’s
measurement of 97.2%—is also troubling on the merits for
several reasons. First, EPA ignored obvious evidence
suggesting its assumption is an underestimate. The TCVP
in the collar is specifically designed to be released; other
parts of the collar, like the plastic buckle, are unlikely to
release dust. So, it seems reasonable to expect that TCVP
will make up a disproportionate amount of the dust released
by collars. Further, the Normal Wear Study which EPA now
praises, showed that after only three weeks of use the percent
of TCVP remaining in the collars had decreased by nearly
half, while the total weight of the collars had declined by
much less than half. This again strongly supports the
common-sense conclusion that the collars would likely
release a disproportionate amount of TCVP.

Second, EPA does not explain why, if it believed that the
Torsion Study exaggerated the amount of TCVP released by
the collars, it still relied on the Torsion Study’s other finding
regarding the total amount of dust released from the collars.
If we were to accept EPA’s reasoning, both measurements
should be suspect: they should be equally affected by the
Torsion Study’s supposedly exaggerated twisting.

Third, in its brief EPA seeks to buttress its assumption
that only 14.6% of the dust released from collars is TCVP by
14 NRDC V. USEPA

pointing to the Normal Wear Study’s finding that only 4%
of the collars’ total observed weight loss was measured as
TCVP after three days. According to EPA, this result
“validated” its assumption that the Torsion Study
exaggerated the amount of TCVP in the dust. Once again,
EPA’s rationale is not contained in its petition denial and is
at best an improper post-hoc rationalization. See NRDC
2017, 857 F.3d at 1040. Further, EPA’s reasoning suffers
from the obvious flaw that the Normal Wear Study only
measured the composition of fifteen percent of the total
observed weight loss; thus, EPA assumes that the remaining
uncollected 85% of the observed weight loss would not
change its analysis.

Another display of irrationality shown by EPA’s use of
the Torsion Study is its assumption that only 0.38% of the
TCVP in the collars will be released as dust. However, the
Torsion Study undermines this assumption because it found
that an average of 1.1% of the TCVP on the collars—roughly
three times as high as EPA’s estimate—was released as dust
before any twisting occurred.

ii. Assumption that owners will trim pet collars by
20%

EPA also assumed that pet owners will always trim the
collars by at least 20% when fitting the collar onto a pet’s
neck. This assumption reduces the expected amount of
TCVP to which individuals would be exposed: all else equal,
less collar means less TCVP. 2 EPA’s assumption that

2
In its brief, EPA argues that because longer collars are more likely
to be used on larger pets, longer collars disperse collars’ TCVP across a
greater surface area of fur and actually reduce TCVP exposure in
humans. However, even if larger pets disperse collars’ TCVP across a
 NRDC V. USEPA 15

owners will trim 20% of collars is drawn from a Hartz
laboratory study of a different type of collar which does not
contain TCVP. In this study (the “Efficacy Study”),
researchers trimmed 20–43% of collars when fitting them to
dogs’ necks to test the collars’ efficacy at protecting pets
from ticks, fleas, and mosquitos. EPA assumed that this
study was applicable to consumers using Hartz’s pet collars.
And, “to provide a conservative assumption of how much
collar might be removed during use,” used the lowest figure
that the researchers trimmed from collars in the Efficacy
Study (i.e. 20%).

EPA’s assumption that pet owners will remove 20% of
collars reversed its earlier assumption: when preparing its
2016 Risk Assessment, EPA noted that because it could not
determine the amount of collars owners would trim, it
assumed that owners would not trim any of the collar. EPA’s
assumption that owners would trim 20% of the collars also
conflicts with its 2012 Standard Operating Procedures for
Residential Pesticide Exposure Assessment, which states
that “[b]ecause the trimmed length and corresponding active
ingredient loss cannot be determined, the maximum
application rate of the [pet] collar as labeled should be
assumed for assessment of post-application risk.” Far from
providing a sound justification for departing from its
previous assumption and standard operating procedure,
though, EPA’s denial of NRDC’s petition blandly stated that
“[a]ccounting for the percentage of the pet collar removed is
believed to better represent typical usage of the product as it
is fit to the treated animal.” EPA provides no explanation
for its reliance on the Efficacy Study, which did not use
TCVP pet collars and did not mimic consumer behavior.

greater surface area of fur, an untrimmed collar would disperse more
TCVP on a pet than a collar trimmed by 20% on that same pet.
16 NRDC V. USEPA

Nor did EPA explain how the results of the Efficacy Study,
which only examined medium-sized dogs, could inform how
pet owners are likely to use TCVP pet collars for dogs of all
sizes and cats. EPA’s reliance on this assumption is further
undermined by Hartz’s own representations. Hartz
advertises that at least one of its collars fits dogs with necks
that measure up to 26 inches, but the longest collar it sells is
only 27 inches. In other words, it would be impossible for
the owner of a dog with a 26-inch neck to remove 20% of
the collar. We do not defer to such a “highly inaccurate”
calculation. See Riley, 74 F.3d at 967.

iii. Lack of substantial evidence

EPA’s denial of NRDC’s petition suffers from numerous
flaws. EPA does not explain its selective use of the Torsion
Study, instead relying now on post-hoc rationalizations
which we do not consider and which suffer from obvious
flaws. See Ctr. for Biological Diversity, 998 F.3d at 1068
(“[A]n agency must provide its ‘reasoned explanation’ in a
form that can adequately be examined on judicial review, not
simply present arguments in its briefing how the decision
might have been reached.”). EPA’s selective use of the
Torsion Study reveals further inconsistences and
weaknesses in its decision to deny NRDC’s petition.
Further, and very importantly, many justifications now
urged by EPA are not given as a part of its basis for its
regulatory decision. We cannot consider contentions raised
in EPA’s briefs that were not given previously as the basis
for EPA’s decision. Finally, EPA’s decision to abandon its
own guidance regarding how much pet owners will remove
from a collar, without a discernable rationale, and instead
rely on an assumption from a different study which is clearly
inapplicable to at least some of Hartz’s pet collars, is not a
viable basis for EPA’s decision. See Riley, 74 F.3d at 967.
 NRDC V. USEPA 17

In combination, it is apparent to us that EPA’s denial of
NRDC’s petition is simply not supported by “substantial
evidence when considered on the record as a whole.” See
7 U.S.C. § 136n(b). 3, 4

IV. CONCLUSION

At times, NRDC’s efforts to receive a reasoned response
from EPA have seemed Sisyphean as the agency consistently
delayed its decision. After NRDC had doggedly pursued this
matter for more than a dozen years, when EPA finally did
reach a decision under pressure of a mandamus order of our
court, NRDC was justified in expecting a rational,
supported, and reasoned response from EPA. EPA, though,
did not provide a well-reasoned or reasonable decision.
Instead, its stated reasons were cursory and often at odds
with EPA’s own prior assumptions and statements. Then, in
response to this lawsuit by NRDC, EPA has provided many
arguments in its briefing that were never given in the record
as the basis for the administrative decision. Because EPA’s
denial of NRDC’s petition is not supported by substantial
evidence, we VACATE EPA’s denial of NRDC’s petition

3
Because we grant NRDC’s requested relief without considering the
Declaration of Miriam Rotkin-Ellman (which was attached to NRDC’s
Opening Brief), we do not consider whether this declaration was
properly before us.
4
Hartz and EPA have demonstrated compelling reasons to maintain
under seal only the Efficacy Study and the Petting Study; conversely,
they have not met their burden to overcome the presumption in favor of
open access to court records for the Torsion Study and the Normal Wear
Study. See Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092,
1096 (9th Cir. 2016). We order the unsealing of the Torsion Study and
the Normal Wear Study.
18 NRDC V. USEPA

and REMAND to EPA to issue a revised response to
NRDC’s petition within 120 days.

VACATED AND REMANDED.