Home » Case Summaries » 2015 » Pesticide Action Network North America v. U.S. Environmental Protection Agency, 798 F.3d 809 (9th Cir. 2015)

 
 

Pesticide Action Network North America v. U.S. Environmental Protection Agency, 798 F.3d 809 (9th Cir. 2015)

 

In this case, Pesticide Action Network North America and the Natural Resources Defense Council (collectively, PAN) petitioned the Ninth Circuit for a writ of mandamus ordering the United States Environmental Protection Agency (EPA) to issue a final decision on an administrative petition PAN filed in 2007 requesting that the agency revoke registration of the pesticide chlorpyrifos. Although the Ninth Circuit recognized the scientific and technical complexity inherent in making pesticide registration decisions, the court granted mandamus relief and ordered EPA to issue a final response to PAN’s petition after finding EPA’s delay in responding to the petition excessive.

EPA is tasked with registering pesticides it determines are safe under the Federal Food, Drug, and Cosmetic Act,[1] meaning that exposure to the pesticide chemical residue will not likely result in harm. EPA has the authority to revoke or amend a registration if EPA determines that the pesticide is not safe.[2] The Food Quality Protection Act (FQPA),[3] passed in 1996, required that EPA review all pesticides in use at that time for compliance with current safety standards. The FQPA required an initial review to be completed within fifteen years, and repeat reviews to be completed every fifteen years thereafter.[4]

Chlorpyrifos is a pesticide primarily used to control pest insects on crops.[5] EPA’s initial review of chlorpyrifos in 2000 allowed for its continued use in agricultural areas. In 2007, PAN filed an administrative petition with EPA seeking a ban on chlorpyrifos based on concerns over its toxicity. EPA never responded to that petition, and in 2010 PAN filed suit in federal court demanding a response. That suit was stayed after EPA promised to issue a human health risk assessment by June 2011 and a final response by November 2011.

After EPA failed to issue the promised final response, PAN filed a petition for a writ of mandamus with the Ninth Circuit in April 2012. In reaction, EPA promised to issue a final response by February 2013 if the response was a complete denial of PAN’s administrative petition, or by February 2014 if the response was a proposed rule to revoke or modify the chlorpyrifos registration. The district court denied the mandamus petition, holding that mandamus was inappropriate because EPA had a timeline for a final response. The suit was dismissed without prejudice so as not to preclude future relief should EPA fail to meet its timeline. Months after EPA missed its February 2014 deadline, PAN filed the petition for a writ of mandamus that is the subject of this decision.

In reviewing the petition for mandamus, the court noted that mandamus is an extraordinary measure that is only warranted when an agency’s delay is “egregious.” To determine if mandamus is warranted, the court weighs six so-called “TRAC factors.” These factors are:

(1) [T]he 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; (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.[6]

The court determined that several factors weighed in favor of mandamus. Specifically, EPA had stretched the “rule of reason” to its limits by failing to issue a final ruling after eight years and by failing to provide any meaningful timeline for issuing a final ruling. Additionally, the potential health risks posed by chlorpyrifos warranted expedited agency action. Finally, EPA’s repeated failure to comply with deadlines in this matter had led to three nonfrivolous lawsuits, and the court wanted to avoid further litigation over EPA’s apparent inability to meet its deadlines. Therefore, the court granted PAN’s petition for mandamus and ordered EPA to issue either a final response to PAN’s administrative petition, or a proposed and final revocation rule for the chlorpyrifos registration, by October 31, 2015.

Footnotes    (↵ returns to text)

  1. 21 U.S.C. § 346a(b)(2)(i)–(ii) (2012).
  2. Id. § 346a(l)(2).
  3. Food Quality Protection Act of 1996, 7 U.S.C. § 136 (2012).
  4. Id.
  5. U.S. Envtl. Prot. Agency, Chlorpyrifos, http://www2.epa.gov/ingredients-used-pesticide-products/chlorpyrifos (last visited July 16, 2016).
  6. Telecomm. Research and Action Ctr. v. Fed. Commc’ns. Comm’n., 750 F.2d 70, 80 (D.C. Cir. 1984).
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