Nrdc v. Usepa ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE NATURAL RESOURCES DEFENSE No. 19-71324
COUNCIL, INC.,
OPINION
NATURAL RESOURCES DEFENSE
COUNCIL, INC.,
Petitioner,
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY; ANDREW WHEELER, in his
capacity as Administrator of the
United States Environmental
Protection Agency,
Respondents.
Petition for Writ of Mandamus
Argued and Submitted February 10, 2020
San Francisco, California
Filed April 22, 2020
2 IN RE NRDC
Before: R. Guy Cole, Jr., * Ronald M. Gould,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Gould
SUMMARY **
Mandamus / Environmental Protection Agency
The panel granted a petition for a writ of mandamus, and
ordered the U.S. Environmental Protection Agency (EPA) to
respond within 90 days of the final date of this decision to
the administrative petition of the Natural Resources Defense
Council (NRDC) requesting that the EPA end the use of a
dangerous pesticide, tetrachlorvinphos (TCVP), in
household pet products.
Under the Federal Insecticide, Fungicide, and
Rodenticide Act, the EPA has the task of determining which
pesticides may be registered for sale and distribution. If the
risks to the environment or human health are unreasonable,
the EPA may initiate proceedings to cancel the pesticide’s
registration, pursuant to 7 U.S.C. § 136d. Any interested
person may petition the EPA to cancel a registered pesticide,
and the EPA is required by the Administrative Procedure Act
to resolve the petition “within a reasonable time.” 5 U.S.C
§ 555(b).
*
The Honorable R. Guy Cole, Jr., Chief Judge of the United States
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.
IN RE NRDC 3
In determining whether the EPA’s delay in responding
to NRDC’s petition merited mandamus relief, the panel
considered the TRAC factors established in Telecomms.
Research and Action Ctr. (TRAC) v. FCC, 750 F.2d 70, 79–
80 (D.C. Cir. 1984). The panel held that the TRAC factors
supported mandamus relief where, for more than a decade,
the EPA frustrated NRDC’s ability to seek judicial review
by withholding final agency action, while endangering the
wellbeing of millions of children. The panel concluded that
the EPA unreasonably and egregiously delayed the
performance of its statutory duties on a critical matter of
public health, and the circumstances warranted the
extraordinary remedy of issuing a writ of mandamus.
If the EPA initiates cancellation proceedings, the panel
ordered the EPA to file status reports with the court until
registration of TCVP has been cancelled. If the EPA denies
NRDC’s petition on the merits, then NRDC may appeal that
final agency action under the standards of the Administrative
Procedure and any other applicable law.
COUNSEL
Ian Fein (argued), Natural Resources Defense Council, San
Francisco, California; Mae Wu, Aaron Colangelo, and Peter
J. DeMarco, Natural Resources Defense Council,
Washington, D.C.; for Petitioner.
Eileen T. McDonough (argued), Environmental Defense
Section; Jonathan D. Brightbill, Principal Deputy Assistant
Attorney General; Environment and Natural Resources
Division, United States Department of Justice, Washington,
D.C.; for Respondents.
4 IN RE NRDC
OPINION
GOULD, Circuit Judge:
For more than a decade, the Natural Resources Defense
Council (NRDC) has waited in vain for the United States
Environmental Protection Agency (EPA) to respond to its
administrative petition requesting that the Agency end the
use of a dangerous pesticide in household pet products.
Repeatedly, the EPA has kicked the can down the road and
betrayed its prior assurances of timely action, even as it has
acknowledged that the pesticide poses widespread, serious
risks to the neurodevelopmental health of children. Guided
by our case law and the history of these proceedings, we hold
that the EPA has unreasonably and egregiously delayed the
performance of its statutory duties on this critical matter of
public health and that the circumstances warrant the
extraordinary remedy of issuing a writ of mandamus. We
grant NRDC’s petition for a writ of mandamus.
I
The EPA’s stated “core mission” is to “protect[] human
health and the environment.” Returning EPA to Its Core
Mission, https://www.epa.gov/home/returning-epa-its-core-
mission. Under the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), 7 U.S.C. §§ 136 et seq., the EPA
has the task of determining which pesticides may be
registered for sale and distribution in the American market,
and the Agency may not approve registration of a pesticide
that would cause “unreasonable adverse effects” to the
environment or human health. 7 U.S.C. §§ 136(bb), 136a(a),
136a(c)(5)(c). The EPA must periodically review
registrations for compliance with that requirement by
conducting risk assessments. Id. § 136a(g)(1)(A)(iii). If the
risks to the environment or human health are unreasonable,
IN RE NRDC 5
the EPA may initiate proceedings to cancel the pesticide’s
registration, pursuant to 7 U.S.C. § 136d. Any interested
person may petition the EPA to cancel a registered pesticide,
40 C.F.R. § 154.10; Wash. Toxics Coal. v. EPA, 413 F.3d
1024, 1033 (9th Cir. 2005), and the EPA is required by the
Administrative Procedure Act (APA) to resolve the petition
“within a reasonable time.” 5 U.S.C. § 555(b).
In April 2009, NRDC submitted an administrative
petition (Administrative Petition) to cancel the registration
of a pesticide called tetrachlorvinphos (TCVP) for use in
household pet products. 1 TCVP is a subset of
organophosphate pesticides, which were developed from
nerve warfare agents used during World War II. NRDC v.
EPA, 658 F.3d 200, 205 (2d Cir. 2011). Organophosphates
pose recognized dangers to the neurodevelopment of
children, causing reduced cognitive capacity, delays in
motor development, and behavioral problems. NRDC’s
Administrative Petition followed on the heels of a 2008 peer-
reviewed study that found that human beings can absorb
TCVP, at measurable, dangerous levels, through contact
with pets being treated with TCVP products such as flea and
tick shampoos, powders, and collars. M. Keith Davis et al.,
Assessing Intermittent Pesticide Exposure from Flea
Control Collars Containing the Organophosphorus
Insecticide Tetrachlorvinphos, 18 J. Exposure Sci. & Envtl.
Epidemiology 564, 568–69 (2008). The study estimated that
“millions of children who could be in direct contact” with
TCVP through their pets are at risk. Id. at 564. Based in
part on these findings, NRDC’s Administrative Petition
sought cancellation of TCVP in pet products and contended
that the EPA had “improperly permitted the continued use of
1
The EPA has registered TCVP in household products, including
certain pet products, since 2006.
6 IN RE NRDC
[TCVP] in pet collars, which has left toddlers . . . exposed to
dangerous levels of a toxic pesticide.”
For nearly five years, NRDC received no response from
the EPA to its Administrative Petition, and in February 2014,
NRDC sought a writ of mandamus in the D.C. Circuit to
compel the EPA to issue a response. In re Natural Resources
Defense Council (NRDC), Case No. 14-1017, Doc. 1478697
(D.C. Cir. Feb. 6, 2014). Seven months after NRDC filed
suit, the EPA denied the Administrative Petition, citing a
newly-completed risk assessment, which concluded that
TCVP’s “risks . . . are below the Agency’s level of concern.”
Because the EPA had issued a final response, the parties
jointly dismissed the D.C. Circuit suit. In re NRDC, Case
No. 14-1017, Doc. 1523854 (Nov. 21, 2014).
With the EPA having taken a judicially reviewable final
action, NRDC brought suit in this court, challenging the
EPA’s denial of the Administrative Petition as unlawful.
Pet. for Review, NRDC v. EPA, Case No. 15-70025, ECF
No. 1-2 (9th Cir. Jan. 5, 2015). Several months into the
litigation, however, the EPA filed a motion for voluntary
remand, asserting that it was completing a new risk
assessment which might change its response to NRDC’s
petition. Based on the EPA’s assertions that it was
“committed to completing remand proceedings in a
reasonable time frame”—and, specifically, its repeated
representations that it “intend[ed] to issue a revised response
to NRDC’s petition within 90 days after finalizing the
[revised] risk assessment”—we remanded the case without a
deadline in June 2016, over NRDC’s objections. Order,
NRDC v. EPA, No. 15-70025, ECF No. 30 (June 9, 2016).
In December 2016, the EPA issued a revised final risk
assessment, which now recognized that children could be
exposed to TCVP through contact with pets using TCVP
IN RE NRDC 7
products and that such exposure posed considerable risks to
their health. Although the risk assessment recognized some
“uncertainty as to whether the TCVP pet collars are liquid
and/or dust formulated products,” it concluded that exposure
“to pets treated with TCVP collars are estimated to be of
concern regardless of the ratio of liquid/dust assumed.” The
risk assessment noted that epidemiological studies have
“consistently identified associations with
neurodevelopmental outcomes associated with
[organophosphate] exposure such as delays in mental
development in infants (24–36 months), attention problems
and autism spectrum disorder in early childhood, and
intelligence decrements in school age children.”
“Therefore,” the report continued, “there is a need to protect
children from exposures that may cause these effects.” Upon
release of the risk assessment, the EPA repeated its intention
to “issue a final revised response to NRDC’s 2009 petition
. . . within 90 days,” and issued a press release announcing
that it had had “identified potential risks to people, including
children, . . . which exceed the Agency’s level of concern.”
When 90 days had passed, however, the EPA did not
issue its promised response. Instead, the EPA sent NRDC a
cursory letter in March 2017, stating that it intended to
review pet-care uses of TCVP and issue a proposed decision
in several months, between July and September 2017,
alongside its scheduled review of all other TCVP uses. But
again, the EPA’s stated deadline came and passed without
action, and, in fact, the EPA released a new schedule of
registration reviews. The revised schedule made no
reference to TCVP at all.
The EPA asserts that during this time it has been
“endeavoring to secure additional data regarding the
formulation of the releases from the pet collars [i.e., dust
8 IN RE NRDC
versus liquid exposure] from Hartz Mountain Corp., the only
remaining pet collar registrant, which will allow EPA to
provide necessary refinement to the TCVP post-application
risk assessment.” After several discussions toward the end
of 2017, Hartz declined to voluntarily provide such data.
The year of 2017 ended without a proposed decision or an
updated schedule for review of TCVP, and so did 2018.
On May 29, 2019, NRDC filed the present petition for a
writ of mandamus to compel the EPA to issue a final
response to the 2009 Administrative Petition. Five days
later, on June 3, 2019, the EPA, for the first time, took action
to compel Hartz, pursuant to 7 U.S.C. § 136a(c)(2)(B)(i)–
(ii), to perform the torsion study that the Agency had
requested in 2017.
“This court’s jurisdiction to consider this petition is
dependent on our jurisdiction to review a final rule.” In re A
Community Voice, 878 F.3d 779, 783 (9th Cir. 2017).
Because we would have jurisdiction to review the EPA’s
final decision resolving NRDC’s petition, see 7 U.S.C.
§ 136n(b); United Farm Workers of Am. v. EPA, 592 F.3d
1080, 1082–83 (9th Cir. 2010), we have jurisdiction here.
II
“Issuing a writ of mandamus directing a federal agency
to act . . . is an extraordinary remedy justified only in
exceptional circumstances,” but “[m]andamus is warranted
in those rare instances when an agency’s delay is egregious.”
In re Pesticide Action Network N. Am., 798 F.3d 809, 813
(9th Cir. 2015) (citations and internal quotation marks
omitted). We are faced with one of those instances.
On three occasions over the last five years, in
circumstances materially similar to those presented here, we
IN RE NRDC 9
have granted petitions for writs of mandamus to compel EPA
action after concluding that the EPA had unreasonably
delayed its response to serious dangers to human health. See
League of United Latin Am. Citizens v. Wheeler (LULAC),
922 F.3d 443, 445 (9th Cir. 2019) (en banc) (mem.) (granting
a writ to compel the EPA to take action regarding another
organophosphate pesticide, similar to TCVP, which had
been linked to neurodevelopmental problems in children,
based on “the history and chronology of this matter and the
nature of the claims”); Community Voice, 878 F.3d at 787–
88 (granting writ to compel EPA action on lead paint, which
was a threat to children’s health, after eight years of delay);
Pesticide Action Network, 798 F.3d at 811–15 (granting writ
in response to EPA’s more than eight-year delay regarding
the same organophosphate at issue in the later LULAC case).
In fact, LULAC and Pesticide Action Network each involved
an organophosphate pesticide which was similar to the
TCVP at issue here and had also been linked to
neurodevelopmental problems in children. Because “[t]his
case is similar in the length of delay, absence of a reasonable
timetable, and harm to health,” Community Voice, 878 F.3d
at 786, we have no trouble concluding that a writ of
mandamus is also warranted here.
In determining that the delay has been sufficiently
egregious to warrant the remedy of mandamus, we consider
the six-factor standard—the so-called “TRAC factors”—
established in Telecomms. Research and Action Ctr. (TRAC)
v. FCC, 750 F.2d 70, 79–80 (D.C. Cir. 1984). Pesticide
Action Network, 798 F.3d at 813. Those factors are as
follows:
(1) the time agencies take to make decisions
must be governed by a rule of reason;
(2) where Congress has provided a timetable
10 IN RE NRDC
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.
TRAC, 750 F.2d at 79–80 (citations and internal quotation
marks omitted).
“The most important [TRAC factor] is the first factor, the
‘rule of reason,’” Community Voice, 878 F.3d at 786 (citing
In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir.
2008)), under which we consider whether the time for
agency action has been reasonable. Repeatedly, courts in
this and other circuits have concluded that “a reasonable
time for agency action is typically counted in weeks or
months, not years.” Id. at 787 (quoting In re Am. Rivers &
Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004)).
On this issue, “the more developed law of the District of
Columbia Circuit,” id. at 782, has held that a “six-year-plus
delay is nothing less than egregious.” Rivers United,
372 F.3d at 419; see also Core Commc’ns, 531 F.3d at 857
(six year delay unreasonable); In re Bluewater Network,
234 F.3d 1305, 1316 (D.C. Cir. 2000) (nine year delay
IN RE NRDC 11
unreasonable); In re Int’l Chem. Workers Union, 958 F.2d
1144, 1150 (D.C. Cir. 1992) (per curiam) (six year delay
unreasonable).
Our own case law is no different. In Pesticide Action
Network, we unanimously held that the rule of reason
“tipped sharply in favor” of petitioners where, after eight
years, the EPA had not issued a final response to an
administrative petition requesting cancellation of the
organophosphate pesticide chlorpyrifos. 798 F.3d at 814.
Observing that the EPA had previously issued a “concrete
timeline” and missed it, and that the EPA was now
referencing additional uncertainties because of “complex
regulatory proceedings,” we concluded that the EPA’s
assurances of action were merely “a roadmap for further
delay” and that the “EPA ha[d] stretched the ‘rule of reason’
beyond its limits.” Id. Similarly, in Community Voice, we
held that the EPA’s more than eight-year delay responding
to an administrative petition requesting that the EPA issue a
new rulemaking to “more adequately protect . . . children”
from lead-based paint was egregious. 878 F.3d at 783, 787–
88.
Here, more than ten years have passed since NRDC first
filed its Administrative Petition. Notably, it has repeatedly
taken the action of NRDC or a court to prompt any
movement by the EPA. Initially, the EPA gave NRDC no
response to its Administrative Petition for five years and,
later, the EPA only submitted its denial of that Petition seven
months after NRDC sued for mandamus in the D.C.
Circuit—effectively mooting that lawsuit. When NRDC
subsequently brought suit against that final decision in this
court, briefing went on for several months before the EPA
sought and received voluntary remand, again effectively
postponing judicial review. To obtain that voluntary
12 IN RE NRDC
remand, the EPA expressly represented—to this court, to
NRDC, and to the public—that it planned to issue a final
decision within 90 days of completing a revised risk
assessment. But when it completed that risk assessment in
December 2016—slating an estimated final response for
March 2017—the EPA never made such a response, and it
has repeatedly delayed its review ever since. Now, in this
litigation, the EPA has represented that it “anticipates” and
“intends to issue its response” in September 2021, or
possibly June 2021, alongside its other regularly scheduled
registration reviews—more than twelve years after NRDC
filed its Petition.
The EPA contends that it has accomplished “a
reasonable amount of progress” during this time, pointing to
its discussions with Hartz, the lone registrant of TCVP
products, about conducting a “torsion study” on affected pet
products, and also its subsequent action to compel Hartz to
conduct that study. But in Community Voice, we found
egregious delay even though the “EPA appears to have done
some work.” 878 F.3d at 783. Perhaps more importantly,
the EPA’s voluntary discussions with Hartz ended near the
close of 2017, and yet the EPA did not act to compel Hartz’s
compliance until a year and a half later, on June 3, 2019—
exactly five days after NRDC filed this suit. Furthermore,
the requested “torsion study” itself is intended to determine
the liquid-dust ratio of TCVP in pet collar products even
though the EPA’s own 2016 risk assessment concluded that
exposure to pets treated with TCVP collars is of concern
“regardless of the ratio of liquid/dust assumed.” These
actions do not represent “a reasonable amount of progress.”
Instead, they show the same pattern of delayed action—
spurred only by outside prompting—that the EPA seems to
have perfected throughout these proceedings.
IN RE NRDC 13
Whether we measure from April 2009—the time of
NRDC’s initial Administrative Petition—or from March
2017—the date that a final response should have been made
according to the EPA’s own representations to this court—
the “EPA has stretched the ‘rule of reason’ beyond its
limits.” 2 Pesticide Action Network, 798 F.3d at 814. Its
delay has not been one of weeks or months, but of years,
Community Voice 878 F.3d at 787, and is all the more glaring
because of its history of inaccurate representations and
mooted lawsuits. And “[i]n light of the fact that [the
Agency’s] timetables have suffered over the years from a
persistent excess of optimism,” Pub. Citizen Health
Research Grp. v. Brock, 823 F.2d 626, 629 (D.C. Cir. 1987),
the “EPA’s ambiguous plan to possibly issue a proposed rule
[more than twelve years] after the administrative petition is
too little, too late,” Pesticide Action Network, 798 F.3d
at 811. The rule of reason “tip[s] sharply in favor” of
mandamus relief. Id. at 814.
The other TRAC factors also support mandamus relief.
The second and sixth factors merit little discussion because
Congress has supplied no specific timetable for this type of
2
This case is readily distinguishable from the cases in which we
have denied a petition for writ of mandamus because of lack of
unreasonable delay. In In re Cal. Power Exch. Corp., 245 F.3d 1110
(9th Cir. 2001), “petitioners sought to compel the Federal Energy
Regulatory Commission to issue a final order regarding outstanding
refund requests . . . a mere four months after the requests were made,”
Community Voice, 878 F.3d at 787, a far cry from the years-long delay
here. And in Indep. Mining Co. v. Babbitt, 105 F.3d 502, 505, 509 (9th
Cir. 1997), we denied mandamus when petitioners sought relief after just
two to three years of waiting for action on their patent claims, where
Congress had expressly given the Department of the Interior five years
to respond. In addition to implicating human health more than refund or
patent claims do, this case involves a much longer time frame than either
of the above cases and no contravening statutory timeline.
14 IN RE NRDC
EPA action except that it occur “within a reasonable time,”
5 U.S.C. § 555(b), 3 and because there is no dispute that “the
court need not find any impropriety lurking behind agency
lassitude in order to hold that agency action is unreasonably
delayed,” TRAC, 750 F.2d at 79–80.
This leaves the third, fourth, and fifth factors: whether
“human health and welfare are at stake,” “the effect of
expediting delayed action on agency activities of a higher or
competing priority,” and “the nature and extent of the
interests prejudiced by delay.” Id. These factors strongly
support NRDC’s petition for mandamus relief.
The EPA has acknowledged that TCVP in pet products
poses a serious risk to human health and welfare—
specifically, to the neurodevelopment of children. The
Agency argues, however—quoting from In re Pesticide
Action Network, 532 Fed. App’x 649, 651 (9th Cir. 2013)—
that because the “EPA, by its nature, regulates almost
entirely in the realm of human health and welfare,” any
acceleration of action on NRDC’s petition will delay other
agency actions that also impact human health. Essentially,
the EPA is arguing that because the third factor (human
health) will always be at stake in EPA cases, it merits less
weight; and at the same time, the nature of the EPA’s work
means that expediting this action will necessarily delay
“agency activities of a higher or competing priority”—the
fourth factor. Specifically, the EPA contends that “[t]he
competing priorities here are the more than 300 pesticide
3
The second factor provides that “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.” TRAC, 750 F.2d at 79–80
(citations and internal quotation marks omitted).
IN RE NRDC 15
registration reviews that must be completed by EPA by
October 2022 to meet the statutory deadline imposed by
FIFRA,” and that “giving NRDC’s Petition undue
precedence over the registration reviews [of other pesticides]
may be detrimental to overall protection of human health
from pesticides.” It therefore argues that TCVP pet products
should be reviewed alongside all these other pesticides. The
EPA’s arguments are misplaced.
First, it argues too much to say that the EPA gets a free
pass on several of the TRAC factors simply because all of its
activities to some extent touch on human health, such that
prioritization of one goal will necessarily detract from
competing priorities. Second, to support that tenuous
position, the EPA quotes to a 2013 unpublished decision in
Pesticide Action Network—the very case in which two years
later we granted mandamus.
In the 2015 published opinion, we explained that
circumstances had changed. Our prior unpublished decision
had reasoned that “the urgency of the action was mitigated
somewhat because EPA ‘regulates almost entirely in the
realm of human health’ and had certified the safety of
chlorpyrifos in 2006.” Pesticide Action Network, 798 F.3d
at 814 (quoting 532 Fed. App’x at 651). But since the 2013
decision, the EPA had “backtracked significantly from that
pronouncement” of safety and had reported that the pesticide
posed a significant threat to water supplies. Id. Thus, even
though the EPA undoubtedly still had a number of
competing regulatory concerns impacting human health, we
concluded that the “EPA offers no acceptable justification
for the considerable human health interests prejudiced by the
delay.” Id. “In view of EPA’s own assessment of the
dangers to human health posed by this pesticide, we [had]
little difficulty concluding [EPA] should be compelled to act
16 IN RE NRDC
quickly to resolve the administrative petition.” Id.; accord
Community Voice, 878 F.3d at 787 (concluding that the third
factor favored granting the writ because “there is a clear
threat to human welfare,” given that the “EPA itself has
acknowledged that ‘[l]ead poisoning is the number one
environmental health threat in the U.S. for children ages 6
and younger’ and that the current standards are
insufficient”).
So too here. The EPA acknowledged in its 2016 risk
assessment that exposure “to pets treated with TCVP collars
are estimated to be of concern regardless of” the liquid-dust
ratio uncertainties that the EPA now claims require more
study. It also recognized that “there is a need to protect
children from exposures that may cause [the identified
neurodevelopmental] effects.” Its January 2017 press
release further confirmed that the risk assessment had
“identified potential risks to people, including children, . . .
which exceed the Agency’s level of concern.” And
elsewhere, the EPA has stated “that more stringent
regulatory restrictions are necessary to protect public
health.” Indeed, millions of young children potentially face
significant risks to their neurodevelopment from further
exposure. See M. Keith Davis, Assessing Intermittent
Pesticide Exposure from Flea Control Collars, 18 J.
Exposure Sci. & Envtl. Epidemiology at 568–69. In short,
“[t]he children exposed [to TCVP] due to the failure of EPA
to act are severely prejudiced by EPA’s delay, and the fifth
factor thus favors issuance of the writ,” as does the third.
Community Voice, 878 F.3d at 787. The stakes to human
health and the interests prejudiced by delay are indisputable.
The EPA’s contention that it nonetheless cannot
prioritize these known dangers to children’s health ahead of
300 other regularly-scheduled pesticide registration
IN RE NRDC 17
reviews—for which it has identified to this court no specific
danger—is not an “acceptable justification for the
considerable human health interests prejudiced by the
delay.” Pesticide Action Network, 798 F.3d at 814. Nor do
its appeals to administrative efficiency outweigh the
acknowledged risks to children’s health. Its assertions of
continued uncertainty regarding liquid-dust ratios also
cannot justify further delay. Even if the EPA had not already
expressly stated that TCVP in pet collars was of concern
regardless of such ratios, the Agency cannot decline to act
“because of the possibility of contradiction in the future by
evidence unavailable at the time of action—a possibility that
will always be present.” Chlorine Chemistry Council v.
EPA, 206 F.3d 1286, 1290–91 (D.C. Cir. 2000). “[H]owever
desirable it may be for EPA [to conduct further study] and
even to revise its conclusion in the future, that is no reason
for acting against its own science findings in the meantime.”
Id. at 1290.
Finally, “[e]ven assuming that EPA has numerous
competing priorities under the fourth factor and has acted in
good faith under the sixth factor, the clear balance of the
TRAC factors favors issuance of the writ.” Community
Voice, 878 F.3d at 787. “[U]nlike Independence Mining or
California Power Exchange”—the two opinions in this
circuit to have denied mandamus for unreasonable delay,
and which involved only economic interests 4—here “there
is a clear threat to human welfare.” Id. “In view of EPA’s
own assessment of the dangers to human health posed by this
pesticide, we have little difficulty concluding [EPA] should
4
Independence Mining involved interests related to individuals’
patent claims, 105 F.3d at 505, 509, and California Power Exchange
involved refund requests, 245 F.3d at 1125. Both involved shorter time
frames than are at issue here.
18 IN RE NRDC
be compelled to act quickly to resolve the administrative
petition.” Pesticide Action Network, 798 F.3d at 814.
In sum, the 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.” Returning EPA to Its
Core Mission, https://www.epa.gov/home/returning-epa-its-
core-mission. Its most recent assurances of expeditious
action evoke its earlier broken promises to this court and
provide a mere “roadmap for further delay.” Pesticide
Action Network, 798 F.3d at 814. The “primary purpose of
the writ in circumstances like these” is “to ensure that an
agency does not thwart our jurisdiction by withholding a
reviewable decision.” Rivers United, 372 F.3d at 419 (citing
TRAC, 750 F.2d at 76). Here, the “EPA’s unreasonable
delay in responding to the administrative petition has already
been the subject of three non-frivolous lawsuits. There
should not be a fourth.” Pesticide Action Network, 798 F.3d
at 814–15. We grant NRDC’s petition for writ of
mandamus.
III
We order the EPA to issue a full and final response to the
Administrative Petition within 90 days of the date that this
decision becomes final, either by denying the Petition or by
initiating cancellation proceedings. If the EPA initiates
cancellation proceedings, we order the EPA to file status
reports with this court every two months, until registration
of TCVP has been cancelled. We note, however, if the EPA
begins cancellation proceedings, then we expect cancellation
proceedings to conclude within one year of the date of this
IN RE NRDC 19
decision, and any extension beyond that must be supported
by a showing of good cause. By contrast, if the Agency
denies NRDC’s Petition on the merits, then NRDC may
appeal that final agency action under the standards of the
APA and any other applicable law. This court shall retain
jurisdiction until the EPA has taken a final action subject to
judicial review.
The petition for writ of mandamus is GRANTED.