Lulac v. Andrew Wheeler, 899 F.3d 814

Background

Chlorpyrifos is an organophosphate pesticide with EPA-set tolerances for many food crops; decades of EPA and academic studies linked prenatal/early-life exposure to lasting neurodevelopmental harm in children.
PANNA and NRDC filed a 2007 FFDCA petition to revoke chlorpyrifos tolerances; EPA delayed repeatedly and, after court-ordered deadlines, issued a 2017 Order denying the petition and leaving tolerances in place.
Before the 2017 Order, EPA’s own 2016 risk assessment concluded chlorpyrifos exposures did not meet the FFDCA safety standard ("reasonable certainty" of no harm).
Petitioners filed objections under 21 U.S.C. § 346a(g)(2); EPA has not issued the (g)(2)(C) order responding to those objections and argues that absent that order courts lack jurisdiction under § 346a(h)(1).
The Ninth Circuit majority held § 346a(h)(1) is non‑jurisdictional, excused exhaustion because of unreasonable delay and weak institutional interests favoring exhaustion, reached the merits, vacated the 2017 Order, and directed EPA to revoke tolerances and cancel registrations within 60 days. Judge Fernandez dissented, arguing lack of jurisdiction and urging dismissal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 346a(h)(1) makes administrative objections (and issuance of a § 346a(g)(2)(C) order) a jurisdictional prerequisite to court review	§ 346a(h)(1) does not clearly make exhaustion jurisdictional; it's a claim‑processing rule	EPA: review is available only after the agency issues the § 346a(g)(2)(C) order; absent that, courts lack jurisdiction	Non‑jurisdictional: § 346a(h)(1) is a party‑directed claim‑processing provision, not a limit on courts’ adjudicatory power (majority)
Whether exhaustion should be excused so court can reach merits despite lack of EPA response to objections	Petitioners timely filed objections; EPA’s delay and prior history justify excusing exhaustion to prevent indefinite delay and irreparable harm	EPA: petitioners must await the (g)(2)(C) order before judicial review	Excused: individual interests (delay, potential irreparable harm to children) outweigh weak institutional interests; court reached merits
Whether EPA’s 2017 Order denying revocation of chlorpyrifos tolerances was lawful under the FFDCA safety standard	Petitioners: EPA’s own prior findings and 2016 risk assessment show tolerances are not "safe" (no reasonable certainty of no harm), so EPA must revoke tolerances	EPA offered no merits defense in briefs and asserted procedural bar instead	On the merits: EPA’s 2017 Order contradicted its own science and statutory duty; court vacated the Order and remanded with directions to revoke tolerances and cancel registrations within 60 days
Whether FIFRA or other statutes provide alternate jurisdiction to avoid § 346a review scheme	Petitioners: related FIFRA claims mean federal courts (district courts under FIFRA) can review without awaiting § 346a process	EPA & States: § 346a(h)(5) precludes seeking review under other statutes for issues reviewable under § 346a	Majority did not need to reach alternative FIFRA argument; dissent viewed FIFRA/FFDCA interplay as reinforcing exhaustion/jurisdictional bar

Key Cases Cited

Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (clarifies difference between jurisdictional rules and claim‑processing rules)
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (distinguishes procedural claim‑processing rules from jurisdictional prescriptions)
Arbaugh v. Y & H Corp., 546 U.S. 500 (Congress must clearly state when a rule is jurisdictional)
Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145 (absence of mandatory jurisdictional language indicates non‑jurisdictional rule)
McCarthy v. Madigan, 503 U.S. 140 (balances individual access to courts against institutional interests favoring exhaustion)
Woodford v. Ngo, 548 U.S. 81 (proper exhaustion requires compliance with agency procedural rules)
Coit Independence Joint Venture v. FSLIC, 489 U.S. 561 (agency delay can excuse exhaustion)
Chlorine Chemistry Council v. EPA, 206 F.3d 1286 (D.C. Cir.) (agency may not avoid acting pending possibility of future contradictory evidence)