Natural Resources Defense Council v. EPA, No. 19-71324 (9th Cir. 2020)
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The Ninth Circuit granted a petition for writ of mandamus and ordered the EPA to respond to the NRDC's petition requesting that the EPA end the use of a dangerous pesticide, tetrachlorvinphos (TCVP), in household pet products. The panel held 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.
The panel considered the factors established in Telecomms. Research and Action Ctr. (TRAC) v. FCC, 750 F.2d 70, 79–80 (D.C. Cir. 1984), and held that the factors supported mandamus relief where, 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 well-being of millions of children and ignoring its "core mission" of "protecting human health and the environment." The panel noted that, if the EPA begins cancellation proceedings, then the panel expects cancellation proceedings to conclude within one year of the date of this decision, and any extension beyond that must be supported by a showing of good cause. If the agency denies NRDC's petition on the merits, then NRDC may appeal that final agency action under the standards of the Administrative Procedure Act and any other applicable law.
Court Description: 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. 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.
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