in Re Pesticide Action Network North America v. U.s. Environmental Protection Agency

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE PESTICIDE ACTION NETWORK
NORTH AMERICA; NATURAL
RESOURCES DEFENSE COUNCIL, INC.,
PESTICIDE ACTION NETWORK NORTH
AMERICA; NATURAL RESOURCES
DEFENSE COUNCIL, INC.,
Petitioners,
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
No. 14-72794
OPINION
Petition for a Writ of Mandamus to the
Environmental Protection Agency
Argued and Submitted
June 1, 2015—Seattle, Washington
Filed August 10, 2015
Before: Diarmuid F. O’Scannlain, A. Wallace Tashima,
and M. Margaret McKeown, Circuit Judges.

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IN RE PESTICIDE ACTION NETWORK N. AM. 2
SUMMARY*
Mandamus Relief
The panel granted a petition for a writ of mandamus,
brought by the Pesticide Action Network North American and
the Natural Resources Defense Council, and ordered the
United States Environmental Protection Agency to issue a
full and final response to their administrative petition
requesting a ban on the pesticide chlorpyrifos no later than
October 31, 2015.
The panel held that EPA’s delay in responding to the
administrative petition warranted the extraordinary remedy of
mandamus. The panel held that the issuance of a writ of
mandamus was necessary to end the EPA’s cycle of
incomplete responses, missed deadlines, and unreasonable delay.
The panel directed EPA to issue either a proposed or final
revocation rule or a full and final response to the
administrative petition by October 31, 2015.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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IN RE PESTICIDE ACTION NETWORK N. AM. 3
COUNSEL
Patti A. Goldman (argued), Matthew Baca, and Kristen
Boyles, Earthjustice, Seattle, Washington, for Petitioners.
Sam Hirsche, Acting Assistant Attorney General, and Erica
Zilioli (argued), United States Department of Justice,
Environmental Enforcement Section, Washington, D.C.;
Mark Dyner, Office of General Counsel, United States
Environmental Protection Agency, Washington, D.C., for
Respondents.
OPINION
McKEOWN, Circuit Judge:
Although filibustering may be a venerable tradition in the
United States Senate, it is frowned upon in administrative
agencies tasked with protecting human health. Pesticide
Action Network North America and the Natural Resources
Defense Council have been waiting for years for the United
States Environmental Protection Agency to respond to their
administrative petition requesting a ban on the pesticide
chlorpyrifos. Instead, they’ve received a litany of partial
status reports, missed deadlines, and vague promises of future
action. We recognize the scientific complexity inherent in
evaluating the safety of pesticides and the competing interests
that the agency must juggle. However, EPA’s ambiguous
plan to possibly issue a proposed rule nearly nine years after
receiving the administrative petition is too little, too late.
This delay is egregious and warrants mandamus relief. We
order EPA to issue a full and final response to the petition no
later than October 31, 2015.

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IN RE PESTICIDE ACTION NETWORK N. AM. 4
BACKGROUND
EPA is tasked with registering all pesticides. A pesticide
may be registered only if EPA finds that it is “safe,” meaning
that “there is a reasonable certainty that no harm will result
from aggregate exposure to the pesticide chemical residue,
including all anticipated dietary exposures and all other
exposures for which there is reliable information.” 21 U.S.C.
§ 346a(b)(2)(A)(ii). EPA may “revoke” a pesticide’s
registration whenever it determines that its use does not meet
safety standards. Id. § 346a(b)(2)(A)(i).
The Food Quality Protection Act of 1996, Pub. L. No.
104-170, directed EPA to take a fresh look at the safety of
existing pesticides. The statute required EPA to examine
every pesticide then in use to ensure compliance with relevant
safety standards. The Act gave EPA ten years to complete an
initial review of registered pesticides, 21 U.S.C. 346a(q)(1),
and ordered the agency to repeat the process using updated
scientific data every fifteen years, 7 U.S.C.
§ 136a(g)(1)(A)(iii).
During this initial review, EPA determined that the
pesticide at issue here, chlorpyrifos, was not being used in an
altogether safe manner. In 2000, EPA announced an
agreement with pesticide manufacturers to ban the application
of chlorpyrifos in residential areas. Carol M. Browner,
Dursban Announcement (June 8, 2000), http://www2.epa.gov/
aboutepa/dursban-announcement. Soon after, the agency
issued both interim and final decisions permitting the
continued use of chlorpyrifos in agricultural areas.
Pesticide Action Network North America and the Natural
Resources Defense Council (collectively Pesticide Action

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IN RE PESTICIDE ACTION NETWORK N. AM. 5
Network) vehemently disagree with EPA’s assessment that
chlorpyrifos is safe. Alleging that EPA ignored evidence of
the pesticide’s toxicity, Pesticide Action Network joined a
federal lawsuit to block the use of chlorpyrifos for any
purpose. Complaint, United Farm Workers v. Adm’r, EPA,
No. 5:07-CV-3950-JF (N.D. Cal. Aug. 1, 2007), ECF No. 1.
That suit was dismissed as time-barred after we clarified the
jurisdictional requirements for challenging EPA’s pesticide
safety determinations. Dismissal Order, United Farm
Workers v. Adm’r, EPA, No. 5:07-CV-3950-JF (N.D. Cal.
Apr. 27, 2010), ECF No. 98 (citing United Farm Workers v.
Adm’r, EPA, 592 F.3d 1080 (9th Cir. 2010)).
Pesticide Action Network also filed an administrative
petition with EPA in September 2007 (“the administrative
petition”). EPA published a notice of that petition in the
Federal Register, 72 Fed. Reg. 58,845 (Oct. 17, 2007), but
otherwise did not issue any formal response to it. In July
2010 Pesticide Action Network filed suit in federal district
court in New York demanding a final response to the
administrative petition. Complaint, N.R.D.C. v. EPA, No. 10-
CV-05590 (S.D.N.Y. July 22, 2010), ECF No. 1. Five
months later, EPA and Pesticide Action Network filed a
stipulation staying the suit based on EPA’s promise that it
would issue a human health risk assessment by June 2011 and
a final response by November 2011. Stipulation and Order,
N.R.D.C. v. EPA, No. 10-CV-05590 (S.D.N.Y. Dec. 22,
2010), ECF No. 17. EPA was a month late in issuing the
human health risk assessment and failed to publish a final
response to the administrative petition.
In April 2012, Pesticide Action Network filed a petition
for a writ of mandamus in the Ninth Circuit (“the 2012

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IN RE PESTICIDE ACTION NETWORK N. AM. 6
mandamus petition”).1 EPA responded by publishing a
partial denial of the administrative petition and stating that it
would finalize its response to the remaining issues raised in
the petition between “February 2013, should it issue a
complete denial of the administrative petition, [and] February
2014, should it decide either to issue a proposed rule, or a
final rule without prior proposal, to revoke or modify the
existing chlorpyrifos tolerances.” EPA’s Response to Petition
for Writ of Mandamus at 29, In Re Pesticide Action Network
North America, No. 12-71125 (9th Cir. July 24, 2012).
After mediation efforts failed to yield a resolution, we
denied the 2012 mandamus petition. In re Pesticide Action
Network N. Am., 532 F. App’x 649 (9th Cir. 2013). In
concluding that mandamus relief was inappropriate at that
time, we noted that EPA had a “concrete timeline” for issuing
a final response by February 2014, and made clear that “our
denial of the petition is without prejudice to seeking the same
relief at a future date in the event EPA fails to act.” Id. at
651–52.
As an astute reader might have guessed, EPA’s timeline
proved not to be “concrete.” When EPA failed to issue a
final response to the administrative petition in February 2014
as promised, Pesticide Action Network filed a renewed
petition for a writ of mandamus in September 2014, which is
the subject of this opinion. While that petition was pending,
EPA issued a preliminary final denial of the administrative
petition on January 14, 2015. 80 Fed. Reg. 1909–11 (Jan. 14
2015). EPA initially informed us that it would finalize its
response to the administrative petition in “summer 2015,” but
1 The New York proceedings were subsequently dismissed.

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IN RE PESTICIDE ACTION NETWORK N. AM. 7
later backtracked and cautioned that it was unlikely to meet
that deadline.
We heard oral argument on June 4, 2015. In response to
questioning regarding when EPA intended to issue a final
response to the administrative petition, counsel for EPA was
unable to offer a firm date. However, counsel stated that
EPA would know by June 30 whether the public comments
received in response to its preliminary final denial of the
administrative petition necessitated further proceedings. We
thus ordered EPA to inform the court of the date by which it
intended to either “finalize the preliminary denial of [the]
administrative petition” or issue any other “final ruling” in
this matter. In Re Pesticide Action Network N. Am., 790 F.3d
875 (9th Cir. June 10, 2015).
In response to that order, EPA asserted that its concerns
about contamination of drinking water had convinced it to
take more aggressive action to restrict chlorpyrifos. EPA
stated that its current plan is to publish, before April 15, 2016,
a proposed rule to “revoke all chlorpyrifos tolerances”—in
essence, to impose an outright ban on the pesticide. In that
update, however, EPA also noted that certain labeling
changes could render such action “unnecessary.” Dissatisfied
with the uncertainty of EPA’s response, Pesticide Action
Network reiterated its request that we issue a writ of
mandamus compelling EPA to issue a “final” ruling on the
administrative petition.
ANALYSIS
The only question before us is whether EPA’s delay in
responding to the administrative petition warrants the
extraordinary remedy of mandamus. We conclude that it

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IN RE PESTICIDE ACTION NETWORK N. AM. 8
does. EPA has spent nearly a decade reviewing Pesticide
Action Network’s data and arguments. Even in response to
our unambiguous order directing EPA to specify a date for
issuing a “final ruling” on the administrative petition, the
agency has still not stated with certainty when it intends to
take formal action to grant or deny it. Issuing a writ of
mandamus is necessary to end this cycle of incomplete
responses, missed deadlines, and unreasonable delay.
The legal standard governing our analysis is neither
complex nor contested by the parties. The Administrative
Procedure Act instructs agencies to complete their work
“within a reasonable time,” and grants courts of appeal the
authority to “compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. §§ 555(b), 706(1). Our
authority to issue a writ of mandamus is contained in the All
Writs Act, 28 U.S.C. § 1651. Issuing a writ of mandamus
directing a federal agency to act, however, is “an
extraordinary remedy justified only in ‘exceptional
circumstances.’” In re Cal. Power Exch. Corp., 245 F.3d
1110, 1120 (9th Cir. 2001) (quoting Gulfstream Aerospace
Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988)).
Mandamus is warranted in those rare instances when the
agency’s delay is “egregious.” Id. at 1124 (internal quotation
marks omitted).
Our inquiry is governed by the six-factor test articulated
in Telecommunications Research and Action Center v.
F.C.C., 750 F.2d 70 (D.C. Cir. 1984), known as the “TRAC
factors.” See Cal. Power Exch. Corp., 245 F.3d at 1124–25.
These factors are:
(1) the time agencies take to make decisions
must be governed by a rule of reason;

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IN RE PESTICIDE ACTION NETWORK N. AM. 9
(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.
TRAC, 750 F.2d at 79–80 (citations and internal quotation
marks omitted).
Two years ago, in July 2013, we applied the TRAC factors
to Pesticide Action Network’s 2012 mandamus petition and
found that they did not yet weigh in favor of judicial action.
We explained that the “complexity of the issue” justified
EPA’s delay in answering the petition, and noted that the
agency had many competing priorities consuming its
resources. In re Pesticide Action Network, 532 F. App’x at

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IN RE PESTICIDE ACTION NETWORK N. AM. 10
651. Although Pesticide Action Network alleged that
chlorpyrifos harmed human health and safety, the urgency of
action was mitigated somewhat because EPA “regulates
almost entirely in the realm of human health” and had
certified the safety of chlorpyrifos in 2006. Id. Critically, we
recognized that issuing a writ was unnecessary in light of
EPA’s “concrete timeline” for finally resolving the petition in
“February 2014.” Id.
EPA would have us adhere to the reasoning and holding
of our prior disposition. But time changes things, including
our weighing of the TRAC factors.
First and foremost, the “rule of reason” has tipped sharply
in favor of Pesticide Action Network. Two years ago, EPA
had been considering the administrative petition for six years
and had a “concrete timeline” for issuing a final ruling in a
matter of months. Now, the delay has stretched to eight
years, and when we asked EPA to specify the precise date by
which it would issue a “final ruling” on Pesticide Action
Network’s petition, it demurred. Instead, EPA told us it
intends to initiate a proposed rulemaking next year, in April
2016. Not only is a proposed rulemaking not a final ruling,
EPA also indicated that it might not issue such a rule at all if
settlement discussions with industry are fruitful. These
prospective conversations introduce yet another uncertainty
in the process. What’s more, EPA’s latest status report says
that it has “concerns about the risks to farmworkers” who are
exposed to chlorpyrifos and states that “complex regulatory
proceedings” may be necessary. Yet EPA does not offer a
timetable for concluding or even initiating those proceedings.
EPA’s response isn’t a “concrete timeline” for resolving the
petition—it’s a roadmap for further delay. EPA has stretched
the “rule of reason” beyond its limits.

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IN RE PESTICIDE ACTION NETWORK N. AM. 11
Another factor that has moved the needle is the threat
posed by chlorpyrifos to human health. Although EPA
determined that chlorpyrifos was “safe” in 2006, it has
backtracked significantly from that pronouncement over the
last several years. EPA recently imposed new labeling
requirements on the chemical, and in its latest status report,
EPA reported that chlorpyrifos poses such a significant threat
to water supplies that a nationwide ban on the pesticide may
be justified. We do not take this representation lightly. Yet
EPA offers no acceptable justification for the considerable
human health interests prejudiced by the delay. In view of
EPA’s own assessment of the dangers to human health posed
by this pesticide, we have little difficulty concluding it should
be compelled to act quickly to resolve the administrative
petition.
Finally, although there is no allegation of impropriety
underlying EPA’s delay, we note that the agency has a
significant history of missing the deadlines it has set in these
proceedings. The D.C. Circuit’s comment in Public Citizen
Health Research Group v. Brock seems particularly apt here:
“In light of the fact that [the agency’s] timetable
representations have suffered over the years from a persistent
excess of optimism, we share petitioners’ concerns as to the
probable completion date.” 823 F.2d 626, 629 (D.C. Cir.
1987) (per curiam). 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.

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CONCLUSION AND ORDER
The petition for a writ of mandamus is granted.2 EPA is
directed to issue either a proposed or final revocation rule or
a full and final response to the administrative petition by
October 31, 2015. If EPA chooses to issue a proposed
revocation rule, it shall inform the court by October 31, 2015,
of the timeline for finalizing the proposed rule. The court
will consider modification of this deadline only if EPA
documents that extraordinary circumstances not already
presented to the court will prevent its compliance.
The petition for a writ of mandamus is GRANTED.
2 Petitioners’ Bill of Costs, filed June 17, 2015, is denied as moot.

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