Pesticide Action Network North America & Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency

FILED
NOT FOR PUBLICATION JUL 10 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: PESTICIDE ACTION NETWORK No. 12-71125
NORTH AMERICA and NATURAL
RESOURCES DEFENSE COUNCIL,
INC.,
MEMORANDUM*
PESTICIDE ACTION NETWORK
NORTH AMERICA and NATURAL
RESOURCES DEFENSE COUNCIL,
INC.,
Petitioners,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondent,
UNITED STATES OF AMERICA,
Real Party in Interest.
Argued and Submitted February 4, 2013
Submission Withdrawn February 6, 2013
Re-submitted July 10, 2013
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: FISHER, GOULD, and PAEZ, Circuit Judges.
Pesticide Action Network North America and Natural Resources Defense
Council, Inc. (collectively “PANNA”) petition this court for a writ of mandamus
requiring the United States Environmental Protection Agency (“EPA”) to respond
within 60 days to its September 12, 2007 petition (“2007 Petition”) asking EPA to
ban the pesticide chlorpyrifos. Because this court would have exclusive
jurisdiction to review any final action taken by EPA in response to the 2007
Petition, we have jurisdiction to review a challenge to EPA’s failure to act. See In
re Cal. Power Exch. Corp., 245 F.3d 1110, 1119-20 (9th Cir. 2001). We deny the
petition.
I.
EPA has a statutory duty to respond to PANNA’s petition in one of three
ways, by issuing: a final regulation, a proposed regulation, or an order denying the
petition. 21 U.S.C. § 346a(d)(4)(A). When EPA fails to act on a petition, a
petitioner may seek judicial review under the Administrative Procedure Act to
compel EPA to act. See 5 U.S.C. § 706 (“The reviewing court shall– (1) compel
agency action unlawfully withheld or unreasonably delayed.”).
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“While agencies cannot insulate their decisions from Congressionally
mandated judicial review simply by failing to take ‘final action,’ our authority to
issue mandamus relief from agency inaction is narrow indeed.” In re Cal. Power
Exch. Corp., 245 F.3d at 1124. “Nevertheless, when as here an agency has a
statutory duty to avoid ‘unreasonable delay,’ we must review the ongoing
proceedings to determine ‘whether the agency’s delay is so egregious as to warrant
mandamus.’” Sierra Club v. Thomas, 828 F.2d 783, 797 (D.C. Cir. 1987) (quoting
Telecomms. Research & Action Ctr. v. F.C.C., 750 F.2d 70, 78 (D.C. Cir. 1984)
(“TRAC”)).
II.
Applying the six-factor test set forth in TRAC for determining whether to
compel agency action on the basis of unreasonable delay, we deny the petition.
See In re Cal. Power Exch. Corp., 245 F.3d at 1124–25 (explicitly adopting the
D.C. Circuit’s six-factor test); Independence Min. Co., Inc. v. Babbitt, 105 F.3d
502, 507 (9th Cir. 1997).
1. The time EPA has taken to consider the 2007 Petition is not unreasonable
in light of the complexity of the issue. “There is no per se rule as to how long is
too long to wait for agency action.” In re Core Commc’ns, Inc., 531 F.3d 849,
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855 (D.C. Cir. 2008) (quoting In re Am. Rivers & Idaho Rivers United, 372 F.3d
413, 419 (D.C. Cir. 2004)).
PANNA argues that there is “no clear end to the delay in sight.” Yet EPA’s
subsequent response in this court has set forth a concrete timeline for final agency
action that would resolve the 2007 Petition by February 2014.
Moreover, EPA has pointed to concrete steps that it has taken from 2007 to
the present to work toward resolving the complicated scientific questions posed by
the 2007 Petition, including convening four Scientific Advisory Panels, and issuing
a preliminary Human Health Risk Assessment, an updated evaluation of pesticide
spray drift risk, and a partial response to the 2007 Petition.
2. The relevant statutes regulating chlorpyrifos—the Federal Food, Drug,
and Cosmetic Act (“FFDCA”), 21 U.S.C. § 346a, and the Federal Insecticide,
Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et. seq.—do not
require EPA to respond to the 2007 Petition on a particular timeline, and instead
require EPA to prioritize other petitions.
As PANNA readily admits, FFDCA and FIFRA “do not provide a fixed
deadline for EPA to respond to a petition to revoke tolerances.” EPA is required
by FFDCA to prioritize certain other petitions and to expedite, within one year,
action on a certain subset of those petitions. 21 U.S.C. §§ 346a(d)(4)(B) & (C).
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Absent the 2007 Petition, FIFRA would not require EPA to evaluate chlorpyrifos
until 2022. 7 U.S.C. § 136a(g)(1)(A)(iii). These statutory provisions lend
significant support to EPA’s argument that the time it has taken to respond is
reasonable.
3. & 5. PANNA forcefully argues that human health and welfare are at
stake and therefore delay may be particularly unreasonable. However, this factor is
not dispositive here. First, EPA found current chlorpyrifos exposures “safe” in
2006, and EPA does not presently believe that current levels of exposures result in
serious harm. Second, EPA, by its nature, regulates almost entirely in the realm of
human health and welfare. In such circumstances, we agree with the D.C. Circuit’s
observation that “whether the public health and welfare will benefit or suffer from
accelerating this particular rulemaking depends crucially upon the competing
priorities that consume EPA’s time, since any acceleration here may come at the
expense of delay of EPA action elsewhere.” Sierra Club, 828 F.2d at 798.
Therefore, neither the fact that EPA’s decision concerns human health nor the
scope of the potential harm justifies issuing a writ of mandamus at this time.
4. The fourth TRAC factor requires that we “consider the effect of
expediting delayed action on agency activities of a higher or competing priority.”
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Independence Min. Co., Inc., 105 F.3d at 507 n.7. EPA argues that its proposed
time frame for resolving the petition is reasonable in light of its other statutory
obligations. We agree. Among other priorities, under FIFRA, EPA must make
registration decisions on pesticide applications on time frames running from three
months to two years; and EPA has received 1,500 such annual applications over
the last three years. This factor therefore weighs against granting the petition.
6. The final TRAC factor does not relate to evidence that must affirmatively
be weighed, but rather merely notes that the court need not find any agency
impropriety in order to find an “unreasonable delay.” Independence Min. Co., Inc.,
105 F.3d at 507 n.7. Here, there is no allegation of impropriety, and thus this
factor deserves little mention.
III.
“In the final analysis, we weigh all the relevant factors and determine
whether they point in favor of court intervention.” Id. at 512. Balancing the
competing interests, we conclude that a writ of mandamus is not warranted at this
time.
Although it is well established that we may retain jurisdiction over the 2007
Petition to ensure that EPA acts expediently, we decline to do so here. See TRAC,
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750 F.2d at 80. However, our denial of the petition is without prejudice to seeking
the same relief at a future date in the event EPA fails to act.
PETITION DENIED.
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