NRDC V. USEPA, No. 20-72794 (9th Cir. 2022)
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Pesticides sold in the United States generally must be registered by the EPA. Private parties can petition the EPA to cancel the registration of a pesticide, and the EPA is required to resolve those petitions “within a reasonable time.” The Natural Resources Defense Council (“NRDC”) petitioned the EPA to cancel the registration of tetrachlorvinphos (“TCVP”), for use in household pet products. After delays, the EPA eventually denied NRDC’s petition.
The court held that the EPA’s denial of NRDC’s petition was not supported by substantial evidence. The EPA failed to provide a reasoned explanation for its denial of NRDC’s petition and made several arbitrary calculations. The EPA’s errors primarily impacted two calculations central to its denial of NRDC’s petition: (1) the amount of TCVP dust released by the pet collars, and (2) the assumption that pet owners will trim the collars by at least 20%.
The court found that it could only uphold agency action based on the reasons the agency gave for its decision. The panel held further that the EPA’s assumption that only 14.6% of the dust released from the collars was TCVP was troubling on the merits. The court held that it would not defer to the EPA’s highly inaccurate calculation that pet owners will trim pet collars by 20% when fitting the collar onto a pet’s neck. The court concluded that it was apparent that the EPA’s denial of NRDC’s petition was simply not supported by substantial evidence when considered on the record as a whole.
Court Description: Pesticides. The panel vacated the U.S. Environmental Protection Agency’s (“EPA”) denial of Natural Resources Defense Council (“NRDC”)’s petition to cancel the registration of the pesticide tetrachlorvinphos (“TCVP”), and remanded for a revised EPA response within 120 days. Under the Federal Insecticide, Fungicide, and Rodenticide Act, pesticides sold in the United States generally must be registered by the EPA. Private parties can petition the EPA to cancel the registration of a pesticide, and the EPA is required to resolve those petitions “within a reasonable time.” 5 U.S.C. § 555(b). The EPA last approved the use of TCVP pesticide in pet products in 2006. In 2009, NRDC petitioned the EPA to cancel the registration of TCVP for use in household pet products. After repeated delays, the EPA eventually denied NRDC’s petition. * The Honorable R. Guy Cole, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. NRDC V. USEPA 3 The panel held that the EPA’s denial of NRDC’s petition was not supported by substantial evidence. The EPA failed to provide a reasoned explanation for its denial of NRDC’s petition and made several arbitrary calculations. The EPA’s errors primarily impacted two calculations central to its denial of NRDC’s petition: (1) the amount of TCVP dust released by the pet collars, and (2) the assumption that pet owners will trim the collars by at least 20%. The EPA without any explanation rejected a central finding of a study – the Torison Study – that it repeatedly stated was a key to its determination. In its brief before this court, the EPA for the first time gave a justification for its decision to reject the Torison Study’s finding that 97.2% of the dust released from the collars comprises TCVP. The panel held that it could only uphold agency action based on the reasons the agency gave for its decision. The panel held further that the EPA’s assumption that only 14.6% of the dust released from the collars was TCVP – instead of the Torison Study’s measurement of 97.2% – was also troubling on the merits. The panel held that it would not defer to the EPA’s highly inaccurate calculation that pet owners will trim pet collars by 20% when fitting the collar onto a pet’s neck. The panel concluded that it was apparent that the EPA’s denial of NRDC’s petition was simply not supported by substantial evidence when considered on the record as a whole. 4 NRDC V. USEPA
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