In re: Center for Biological Diversity ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 2022 Decided November 22, 2022
No. 21-1270
IN RE: CENTER FOR BIOLOGICAL DIVERSITY AND CENTER FOR
FOOD SAFETY,
PETITIONERS
FMC CORPORATION AND SYNGENTA CROP PROTECTION, LLC,
INTERVENORS
On Petition For Writ of Mandamus
Stephanie M. Parent argued the cause for petitioners.
With her on the petition for writ of mandamus and the reply
was Jonathan C. Evans.
Kamela A. Caschette, Attorney, U.S. Department of
Justice, argued the cause for respondent. With her on the
opposition to the petition for writ of mandamus were Todd
Kim, Assistant Attorney General, and Patrick R. Jacobi,
Attorney.
Thomas A. Lorenzen argued the cause for intervenors.
With him on the response to the petition for writ of mandamus
were Kirsten L. Nathanson and Elizabeth B. Dawson. Amanda
S. Berman entered an appearance.
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Before: MILLETT and RAO, Circuit Judges, and TATEL,
Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge TATEL.
TATEL, Senior Circuit Judge: Eight years ago, the
Environmental Protection Agency registered a new pesticide
without first determining, as required by the Endangered
Species Act, whether it would have an adverse effect on
endangered species. Then, five years ago, our court ordered
EPA to fulfill that statutory obligation. Notwithstanding
Congress’s mandate and our order, EPA has failed to make the
required determination. Now, the Center for Biological
Diversity and the Center for Food Safety seek the only legal
relief left that would force EPA to comply with the statute: a
writ of mandamus. For the reasons set forth below, we shall
grant the writ.
I.
Two statutes lie at the heart of this case: the Endangered
Species Act (ESA) and the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA).
The ESA, a broad decree to all executive agencies,
requires them to consult with either the National Marine
Fisheries Service or the Fish and Wildlife Service (“the
Services”) to “insure that any action authorized, funded, or
carried out . . . is not likely to jeopardize the continued
existence of any endangered species or threatened species or
result in [their habitats’] destruction.” 16 U.S.C. § 1536(a)(2).
If this seems a heavy burden for agencies to carry, that is by
design: Congress “struck [the balance] in favor of affording
endangered species the highest of priorities.” Tennessee Valley
Authority v. Hill, 437 U.S. 153, 194 (1978).
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An agency’s first step toward ESA compliance is an
effects determination, an initial review to determine whether a
proposed action “may affect” an endangered species or its
habitat. 50 C.F.R. § 402.14(a). If the agency finds that its
proposed action will “not affect any listed species or critical
habitat” in any way, then it need not consult the Services.
Center for Biological Diversity v. Department of Interior, 563
F.3d 466, 475 (D.C. Cir. 2009). But if it finds that the proposed
action may affect an endangered species, then it must consult.
50 C.F.R. §§ 402.14(a); 402.13(a). This required consultation
is critical because it includes inter-agency consideration of
what plausible mitigation measures could be implemented to
avoid adverse effects on endangered and threatened species.
See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14. Consultation,
then, provides a roadmap forward that balances
accommodating agency priorities with maintaining ESA
compliance. See 50 C.F.R. § 402.14(h)(2).
The second statute, FIFRA, regulates the sale and
distribution of pesticides. No pesticide may be sold in the
United States unless it is first registered with EPA. 7 U.S.C.
§ 136a(a). After receiving an application to register a pesticide,
EPA must approve the application if it meets composition and
labeling requirements and will “perform its intended function
without unreasonable adverse effects on the environment” if
used in accordance with widespread practices. 7 U.S.C.
§ 136a(c)(5). An EPA order registering a pesticide following
notice-and-comment—like the one at issue in this case—may
be challenged only in this court. Center for Biological
Diversity v. EPA, 861 F.3d 174, 187 (D.C. Cir. 2017).
EPA has long had a fraught relationship with the ESA. It
has made a habit of registering pesticides without making the
required effects determination. As pesticides registered without
effects determinations pile up, private parties regularly haul
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EPA into federal court to force ESA compliance. EPA has
faced at least twenty lawsuits covering over 1,000 improperly
registered pesticides. See Environmental Protection Agency,
Balancing Wildlife Protection and Responsible Pesticide Use:
How EPA’s Pesticide Program Will Meet its Endangered
Species Act Obligations 4 (2022). EPA’s backlog even caught
Congress’s attention. In 2014, it directed EPA and the Services
to file a report describing “approaches and actions taken” to
streamline the FIFRA and ESA processes. Agricultural Act of
2014, Pub. L. No. 113-79, § 10013, 128 Stat. 649, 951. As a
result, an interagency working group now regularly reports to
the House Committee on Agriculture and the Senate
Committee on Agriculture, Nutrition, and Forestry on its
progress. See Agriculture Improvement Act of 2018 § 10115,
7 U.S.C. § 136a(c)(11).
The pesticide involved in this case, cyantraniliprole,
provides protection from pests that feast on citrus trees and
blueberry bushes. EPA classified cyantraniliprole as a
“Reduced Risk” pesticide, a special category for pesticides it
determines have a lower risk to human health and many non-
target organisms. But in truth, cyantraniliprole poses a reduced
risk to only some species. EPA’s own risk assessment indicates
that it is “slightly to very highly toxic to freshwater
invertebrates; moderately to highly toxic to estuarine/marine
invertebrates[;] highly toxic to benthic invertebrates; [and]
highly to very highly toxic to terrestrial insects.”
Environmental Protection Agency, Environmental Fate and
Ecological Risk Assessment for the Registration of the New
Chemical Cyantraniliprole—Amended 57 (2013). Most
significant for our purposes, EPA concluded that
cyantraniliprole “ha[s] the potential for direct adverse effects
to federally listed threatened/endangered” species. Id. at 5.
Even so, EPA registered cyantraniliprole in 2014—without an
effects determination and without consulting with the Services.
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Cyantraniliprole’s registration has come before our court
before. In 2014, petitioners, the Center for Biological Diversity
and the Center for Food Safety (“the Centers”), filed a petition
for review under FIFRA to force EPA to make an effects
determination and, if required, consult with the Services.
Center for Biological Diversity, 861 F.3d 174. EPA willingly
admitted that it “ha[d] not made an ‘effects’ determination or
initiated consultation . . . consistent with the ESA and its
implementing regulations.” Id. at 188. After satisfying itself
that it had exclusive jurisdiction under FIFRA to review
cyantraniliprole’s registration and after EPA’s frank admission
of culpability, it took this court only a paragraph to find that
EPA had violated the ESA.
Despite the faulty registration, the Centers chose not to
seek vacatur, an understandable decision given that our court
determined that vacating cyantraniliprole’s registration would
“‘temporarily defeat . . . the enhanced protection of the
environmental values covered by’” the registration and
encourage the use of older, more toxic pesticides in
cyantraniliprole’s place. Id. at 188–89 (quoting North
Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008) (per
curiam)). The court remanded with instructions to EPA to
replace the registration order with one “consistent with [its]
opinion,” id. at 189—i.e., a new registration order signed after
an effects determination and any required consultation. In the
ensuing five years, however, EPA made no progress toward
completing cyantraniliprole’s effects determination—that is,
no progress until earlier this year. Only then did EPA schedule
cyantraniliprole’s effects determination, though it took no steps
to complete it. Matuszko Decl. ¶ 25 & n.22.
Unsatisfied, the Centers have returned to court, seeking a
writ of mandamus under the All Writs Act, 28 U.S.C. § 1651,
to require EPA to finally perform its ESA duties. In support,
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they argue that EPA is eight years past its statutory deadline,
has failed to comply with our remand order, and is risking the
health and habitats of endangered species. EPA responds that
despite this near decade-long delay, it acted “reasonably by
prioritizing development of a programmatic framework for
addressing its pesticide program’s extensive ESA obligations.”
EPA Br. 1.
Cyantraniliprole’s registration owners, Syngenta Crop
Protection, LLC and FMC Corporation, have intervened,
arguing that vacating cyantraniliprole’s registration would be
“disruptive.” Intervenors’ Br. 28. Fortunately for them,
although the Centers originally requested that we order EPA to
complete its effects determination within six months with
automatic vacatur if it missed that deadline, counsel for the
Centers made clear at oral argument that they were no longer
seeking vacatur because EPA has now committed to
completing the effects determination by September 2023.
Matuszko Decl. ¶ 25 (“EPA has committed to the following
schedule for making effects determinations: . . . Sept. 2023[:]
final effects determinations for cyantraniliprole.”). The Centers
now seek only a court order enforcing that deadline. Oral Arg.
Rec. 4:14–19.
II.
Mandamus is an “extraordinary remedy, reserved only for
the most transparent violations of a clear duty to act.” In re
Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000). A
petitioner seeking mandamus must first establish that the
agency has violated “a crystal-clear legal duty.” In re National
Nurses United, 47 F.4th 746, 752 (D.C. Cir. 2022). Absent a
violation of a clear duty, this court is powerless to grant
mandamus.
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Violating a clear duty, however, is just the beginning of
the mandamus analysis. A mandamus petitioner must show that
it “has no other adequate means to attain the relief it desires.”
In re Core Communications, 531 F.3d 849, 860 (D.C. Cir.
2008) (internal quotation marks and alteration omitted).
Moreover, a court may grant mandamus relief only when it also
“finds compelling equitable grounds.” In re Medicare
Reimbursement Litigation, 414 F.3d 7, 10 (D.C. Cir. 2005)
(internal quotation marks and alteration omitted). On the
equities, the central question is “whether the agency’s delay is
so egregious as to warrant mandamus.” Core Communications,
531 F.3d at 855 (internal quotation marks omitted). The
“hexagonal” TRAC factors guide this inquiry:
(1) the 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.
8
Telecommunications Research & Action Center (TRAC) v.
FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (internal quotation
marks and citations omitted).
The mandamus petition in this case arises from relatively
unique circumstances that implicate two distinct sources of
mandamus jurisdiction under the All Writs Act: our power to
compel unreasonably delayed agency activity and our power to
require compliance with our previously issued orders. See
NetCoalition v. SEC, 715 F.3d 342, 354 (D.C. Cir. 2013)
(frustration of previous orders); National Nurses United, 47
F.4th at 752 (unreasonable agency delay). In a standard
unreasonable delay case, we evaluate an agency’s delays in its
own rulemaking or in responding to private parties’ requests.
Core Communications, 531 F.3d at 856. But here, we also face
EPA’s five-year-long failure to respond to our own order.
When an agency ignores a court order, it creates a “different
[problem].” Id. It “nullifie[s] our determination that its [action
is] invalid” and “insulates its nullification of our decision from
further review.” Id. By ignoring our instruction to “replace[]”
cyantraniliprole’s registration order with “an order consistent”
with the ESA, Center for Biological Diversity, 861 F.3d at 189,
EPA prevents us from reviewing that new order. EPA has
defied both the ESA and this court. The executive stands alone
in opposition to both the judiciary and the legislature. In these
situations, although the TRAC factors are “not unimportant,” a
lesser showing is necessary to justify mandamus. Core
Communications, 531 F.3d at 855–56. That said, mandamus in
this case is warranted even under the ordinary TRAC factors.
III.
Our analysis flows easily from this framework. EPA has a
“clear duty” to perform an effects determination before
registering cyantraniliprole. Center for Biological Diversity,
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861 F.3d at 188. It has a parallel “clear duty” to obey our order.
Core Communications, 531 F.3d at 856. And EPA does not
contest that the petitioners lack an adequate alternative remedy.
Nor could it: a writ of mandamus is the only way to compel
EPA to perform its clear duties in this case. The sole question,
then, is whether EPA’s delay in undertaking an effects
determination is “so egregious as to warrant mandamus.” Id. at
855 (internal quotation marks omitted). It is.
Although EPA’s failure to “heed our remand” is the
“[d]ecisive” factor here, In re People’s Mojahedin Org. of Iran,
680 F.3d 832, 837 (D.C. Cir. 2012) (per curiam), we shall
nonetheless examine the TRAC factors, as we have in other
cases. See id. at 837–38; Core Communications, 531 F.3d at855–58.
Congress set a plain deadline (TRAC factors one and two).
The ESA required EPA to issue an effects determination and
engage in any required consulting before registering
cyantraniliprole. 16 U.S.C. § 1536(a)(3). Eight years of
outright non-compliance flouts the “‘rule of reason,’” the “first
and most important” TRAC factor. Core Communications, 531
F.3d at 855 (quoting TRAC, 750 F.2d at 80).
Attempting to evade this congressional timeline, EPA
insists that its delay is reasonable, pointing to the effects
determination’s complexity, numerous competing obligations,
and its new “programmatic approach” for pesticide
registration. Such considerations might hold sway had
Congress never set an exacting deadline. But when Congress
imposes a timeline, that timeline “suppl[ies] content for th[e]
rule of reason.” TRAC, 750 F.2d at 80. Here, Congress has
spoken.
Also weighing in favor of mandamus is the potential threat
cyantraniliprole poses to endangered species. TRAC factors
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three and five, which often “overlap[],” direct us to consider
the effects of agency delay. In re Barr Laboratories, Inc., 930
F.2d 72, 75 (D.C. Cir. 1991). Delay is “less tolerable when
human health and welfare” is at stake, TRAC, 750 F.2d at 80,
and ESA-protected species are “valuable to the health and
welfare of the nation,” In re American Rivers & Idaho Rivers
United, 372 F.3d 413, 414 (D.C. Cir. 2004). The Supreme
Court has made clear that “‘it is in the best interests of mankind
to minimize the losses of genetic variations.’” Tennessee
Valley Authority, 437 U.S. at 178 (emphasis omitted) (quoting
H.R. Rep. No. 93–412, at 4–5 (1973)).
True, we are in the dark about the exact threat
cyantraniliprole poses. Indeed, that is precisely what the effects
determination is designed to illuminate. But we do know from
EPA’s internal risk assessment that cyantraniliprole “ha[s] the
potential for direct adverse effects” on endangered species.
Environmental Protection Agency, Environmental Fate and
Ecological Risk Assessment for the Registration of the New
Chemical Cyantraniliprole—Amended 5 (2013). Completing
an effects determination and any required consultation would
reveal whether such a threat exists, and if so, its magnitude. If
EPA identifies risks to endangered species, it could revise
cyantraniliprole’s labeling to include mitigation measures or
limits on use. See 7 U.S.C. § 136j(a)(2)(G) (making it unlawful
to use a registered pesticide “in a manner inconsistent with its
labeling”).
Echoing the concerns expressed in our court’s previous
opinion, Center for Biological Diversity, 861 F.3d at 189, EPA
argues that vacating cyantraniliprole’s registration would cause
more harm by forcing more dangerous pesticides back on the
markets and into our environment. The Centers, however, have
abandoned their vacatur request.
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The fourth TRAC factor, which instructs courts to consider
“the effect of expediting delayed action on agency activities,”
TRAC, 750 F.2d at 80, generally cautions against facilitating
line-jumping and reordering agency priorities, In re Public
Employees for Environmental Responsibility, 957 F.3d 267,
275 (D.C. Cir. 2020). But here the Centers make no request for
cyantraniliprole to cut the line. They ask only that we order
EPA to complete its effects determination according to its own
proposed schedule—by September 2023.
EPA argues that mandamus is unwarranted because a
“‘reasonably definite schedule’” such as its voluntary
“commitment to a September 2023” deadline “represents a
‘good faith effort by [the agency] to come into compliance with
it[s] statutory obligations.’” EPA Br. 25 (quoting In re United
Mine Workers of America International Union, 190 F.3d 545,
555 (D.C. Cir. 1999)). We, however, have reason to doubt
whether EPA will meet its own deadline. For one thing, EPA
failed to announce its commitment to the September 2023
deadline until after petitioners sought mandamus. Moreover,
even the September 2023 date carries a caveat: EPA warns it
may not meet the deadline because it intends to go through time
consuming notice-and-comment rulemaking. Matuszko Decl.
¶ 25 n.15. As EPA acknowledges, however, it has no statutory
obligation to do so, Oral Arg. Rec. 33:03–15, leaving us even
more skeptical of its commitment to the September 2023
deadline. Finally, until at least 2030, EPA will make effects
determinations only in cases where courts have ordered it to do
so. See Environmental Protection Agency, Balancing Wildlife
Protection and Responsible Pesticide Use: How EPA’s
Pesticide Program Will Meet its Endangered Species Act
Obligations 4 (2022). As it explained, “any future court
decision or legal settlement to complete an [effects]
determination during that time will stretch the [a]gency’s
already very thin program capacity and may undermine EPA’s
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ability to meet its other ESA commitments.” Id. at 26. In other
words, EPA may be forced by a different court to prioritize
another pesticide. For all of these reasons, “we cannot fairly
describe [EPA’s] schedule as ‘reasonably definite.’” United
Mine Workers, 190 F.3d at 555.
In any event, whether EPA’s internal deadline
demonstrates that it is acting in good faith is beside the point.
We need not find bad faith to find unreasonable delay. TRAC,
750 F.2d at 80. No doubt EPA is now trying to meet its
“numerous FIFRA-related ESA obligations,” along with the
demands of “other equally complex environmental statutes,”
armed only with “finite resources.” EPA Br. 21. Nevertheless,
“‘[h]owever many priorities the agency may have, and
however modest its personnel and budgetary resources may be,
there is a limit to how long it may use these justifications to
excuse inaction in the face of’” a statutory deadline and court
order. American Hospital Association v. Burwell, 812 F.3d
183, 191 (D.C. Cir. 2016) (quoting United Mine Workers, 190
F.3d at 554). EPA has passed that limit.
Accordingly, we grant the writ. EPA is ordered to
complete cyantraniliprole’s effects determination and replace
its previous order with an order consistent with the ESA by
September 2023. To add bite to our writ, we will retain
jurisdiction and monitor EPA’s progress. EPA is directed to
submit status updates every 60 days between now and
September 2023. Should EPA fail to meet its September
deadline, petitioners are free to renew their motion for vacatur
of cyantraniliprole’s registration order.
So ordered.