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By Timothy D. Backstrom

On April 19, 2019, the U.S. Circuit Court of Appeals for the Ninth Circuit (Ninth Circuit) issued an order following an en banc rehearing in League of United Latin Am. Citizens (LULAC) v. Wheeler, No. 17-71636.  The February 6, 2019, Ninth Circuit decision to grant a U.S. Environmental Protection Agency (EPA) request for rehearing effectively vacated an August 9, 2018, decision in LULAC that had ordered EPA to revoke all tolerances and cancel all registrations for chlorpyrifos.  After rehearing, the en banc panel issued a writ of mandamus directing EPA “to issue, no later than 90 days after the filing of this order, a full and fair decision on LULAC’s objections" to an initial EPA order denying a 2007 petition to revoke all tolerances for chlorpyrifos.  The en banc order states that the court has discretion to construe the Petitioners' opening brief as a request for mandamus relief, even though the Petitioners sought judicial review of EPA's initial denial decision without waiting for EPA to rule on their objections and even though they did not file a petition for mandamus under the applicable procedural rule.  The court then states that “[c]onsidering the history and chronology of this matter and the nature of the claims, we conclude mandamus is appropriate, and we hereby GRANT the Petition for a Writ of Mandamus.”

The court states that “EPA represented that it could issue a final decision with respect to petitioners’ objections within 90 days of an order issued by this court” during oral argument on March 26, 2019.  The en banc ruling, however, does not discuss the jurisdictional issues presented when the Petitioners sought judicial review of EPA's initial denial decision without waiting for EPA to rule on their objections.  Moreover, the ruling does not discuss the substantive dispute concerning EPA's authority to decline to revoke the tolerances and cancel the registrations for chlorpyrifos based on the current administrative record.

Commentary

The procedural questions presented in the LULAC litigation are unusual and reflect a long and contentious history.  EPA’s April 5, 2017, decision to deny a 2007 petition to revoke the tolerances and cancel the registrations for chlorpyrifos came after issuance of a prior writ of mandamus that required EPA to take action on the pending petition, an EPA proposal to revoke the tolerances for chlorpyrifos issued in response to the prior writ, and a subsequent decision by EPA during the early days of the Trump administration to reverse course on the proposal and keep the tolerances in place while EPA completed the registration review process.  The Petitioners in LULAC duly filed objections to the initial denial of their tolerance petition, which was a necessary statutory prerequisite to pursuing further judicial review.  In addition, however, they elected to file for judicial review of EPA's initial denial of their tolerance petition on the same day as they filed their objections.  The Petitioners could not yet reasonably seek mandamus at that time because EPA had not been afforded any time yet to respond to their objections.  Instead, the Petitioners argued that requiring them to follow the normal administrative process would be futile.

Although the Ninth Circuit's decision after en banc rehearing may appear to a procedural victory for EPA, it can also be seen as a solution to the quandary created by the Petitioners' actions and the first court decision.  The Ninth Circuit as a whole was apparently not comfortable with the decision by the first panel that the Petitioners should be allowed to obtain review of a non-final order because waiting for final and reviewable EPA action would be a futility.  Nevertheless, by issuing a new writ of mandamus, the court seems to be sending a clear signal that it will not countenance further delays in EPA’s taking final action on the petition to revoke the chlorpyrifos tolerances.  In the relatively brief time remaining before the court deadline for final action, EPA confronts a significant challenge of ensuring all relevant data have been adequately and appropriately considered, particularly given the many controversies concerning the data that EPA used to support its initial decision to revoke the tolerances. 

More information on the protracted litigation concerning chlorpyrifos is available on our blog under key words chlorpyrifos and ninth circuit.


 

By Lisa M. Campbell, Timothy D. Backstrom, and James V. Aidala

In an opinion issued on August 10, 2015, the U.S. Court of Appeals for the Ninth Circuit granted a writ of mandamus requested by Pesticide Action Network North America and the Natural Resources Defense Council (Petitioners) to require that the U.S. Environmental Protection Agency (EPA) act in response to a 2007 administrative petition to cancel the registrations of all pesticides containing chlorpyrifos.  A writ of mandamus to compel administrative action is an extraordinary remedy and is generally reserved for instances of egregious delay.  The same court had previously declined to grant mandamus to the same Petitioners in 2013, but has now concluded that mandamus is the only way to end a “cycle of incomplete responses, missed deadlines, and unreasonable delay.”

After the Petitioners commenced the current case, EPA issued a preliminary decision indicating that it intended to deny the petition to cancel chlorpyrifos, and told the court that it would take final action after reviewing public comments by the summer of 2015.  In a status report subsequently filed in response to a June 10, 2015, order by the court, EPA changed course and stated that unresolved concerns about the risk associated with chlorpyrifos levels in some drinking water might warrant a rulemaking to revoke all existing chlorpyrifos tolerances.  EPA stated that it intended to commence such a rulemaking in April, 2016, unless the registrants of chlorpyrifos products agree to make labeling changes to mitigate the risk from residues in drinking water.  The Petitioners were not satisfied with this amorphous response by EPA, and the court has now agreed.

The writ of mandamus directs EPA to issue a proposed or final rule to revoke chlorpyrifos tolerances, or a full and final response to the administrative petition to cancel chlorpyrifos, no later than October 31, 2015.  If EPA elects to issue a proposed revocation rule, EPA must inform the court by October 31, 2015, of the timeline for finalizing the proposed rule.  Meeting this specific directive from the court will be very challenging.  EPA must determine quickly whether the registrants of chlorpyrifos products will agree to label changes that EPA considers sufficient to mitigate drinking water risks.  Such label changes could hypothetically obviate the need for a tolerance revocation rule and provide a basis for a final decision by EPA to deny the petition to ban chlorpyrifos.  Otherwise, EPA will need to substantially accelerate its stated timetable for issuing a proposed rule to revoke chlorpyrifos tolerances.

In brief, this commitment by EPA will accelerate discussions with the registrant and user groups in an attempt to resolve the issues identified in EPA’s assessment.  It appears that this will compress a process which has typically taken many months into a much tighter time frame, to comply with the court’s order.  That obviously was among the goals of the plaintiffs in the case; it remains to be seen how doing so will affect the EPA’s ability to evaluate the risks and benefits of the pesticide as fully as it typically has done in the past.