LEAGUE OF UNITED LATIN AMERICAN CITIZENS; PESTICIDE ACTION NETWORK NORTH AMERICA; NATURAL RESOURCES DEFENSE COUNCIL; CALIFORNIA RURAL LEGAL ASSISTANCE FOUNDATION; FARMWORKERS ASSOCIATION OF FLORIDA; FARMWORKER JUSTICE GREENLATINOS; LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT; LEARNING DISABILITIES ASSOCIATION OF AMERICA; NATIONAL HISPANIC MEDICAL ASSOCIATION; PINEROS Y CAMPESINOS UNIDOS DEL NOROESTE; UNITED FARM WORKERS, Petitioners, v. ANDREW WHEELER, Acting Administrator of the U.S. Environmental Protection Agency; and U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondents, STATE OF NEW YORK; STATE OF MARYLAND; STATE OF VERMONT; STATE OF WASHINGTON; COMMONWEALTH OF MASSACHUSETTS; DISTRICT OF COLUMBIA; STATE OF CALIFORNIA; STATE OF HAWAII, Intervenors.
No. 17-71636
United States Court of Appeals for the Ninth Circuit
August 9, 2018
FOR PUBLICATION. OPINION. Argued and Submitted July 9, 2018, Seattle, Washington.
Before: Ferdinand F. Fernandez and Jacqueline H. Nguyen, Circuit Judges, and Jed S. Rakoff, District Judge.
On Petition for Review of an Order of the Environmental Protection Agency
Opinion by Judge Rakoff; Dissent by Judge Fernandez
* The Honorable Jed
SUMMARY**
Pesticides
The panel granted a petition for review, and vacated the Environmental Protection Agency‘s (“EPA“) 2017 order maintaining a tolerance for the pesticide chlorpyrifos, and remanded to the EPA with directions to revoke all tolerances and cancel all registrations for chlorpyrifos within 60 days.
The Federal Food, Drug, and Cosmetic Act (“FFDCA“) authorizes the EPA to regulate the use of pesticides on foods according to specific statutory standards, and grants the EPA a limited authority to establish tolerances for pesticides meeting statutory qualifications. The EPA is subject to safety standards in exercising its authority to register pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA“).
The EPA argued that FFDCA‘s section 346a(g)(2)‘s administrative process deprived this Court of jurisdiction until the EPA issues a response to petitioner‘s administrаtive objections under section 346a(g)(2)(C), which it has not done to date.
The panel held that section 346a(h)(1) of the FFDCA does not “clearly state” that obtaining a section (g)(2)(C) order in response to administrative objections is a jurisdictional requirement. The panel held that section 346a(h)(1) contains no jurisdictional label, is structured as a limitation on the parties rather than the court, and only references an exhaustion process that is outlined in a separate section of the statute.
The panel held that in light of the strong individual interests against requiring exhaustion and weak institutional interests in favor of it, petitioners need not exhaust their administrative objections and were not precluded from raising issues on the merits.
Turning to the merits, the panel held that there was no justification for the EPA‘s decision in its 2017 order to maintain a tolerance for chlorpyrifos in the face of scientific evidence that its residue on food causes neurodevelopmental damage to children. The panel further held that the EPA cannot refuse to act because of possible contradiction in the future by evidence. The panel held that the EPA was in direct contravention of the FFDCA and FIFRA.
Judge Fernandez dissented. Judge Fernandez would hold that there is no jurisdiction over the petition for review under FFDCA and FIFRA, and dismiss the petition.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
COUNSEL
Patti A. Goldman (argued), Marisa C. Ordonia, and Kristen L. Boyles, Earthjustice, Seattle, Washington, for Petitioners.
Frederick A. Brodie (argued), Assistant Solicitor General; Andrea Oser, Deputy Solicitor General; Barbara D. Underwood, Attorney General; Office of the Attorney General, Albany, New York; Brian E. Frosh, Attorney General; Steven M. Sullivan, Solicitor General; Office of the Attorney General, Baltimore, Maryland; Thomas J. Donovan Jr., Attorney General; Nicholas F. Persampieri, Assistant Attorney General; Office of the Attorney General, Montpelier, Vermont; Robert W. Ferguson, Attorney General; William R. Sherman, Counsel for Environmental Protection; Attorney General‘s Office, Seattle, Washington; Maura Healey, Attorney General; I. Andrew Goldberg, Assistant Attorney General; Environmental Protection Division, Office of the Attorney General, Boston, Massachusetts; Karl A. Racine, Attorney General; Brian R. Caldwell, Assistant Attorney General; Office of the Attorney General, Washington, D.C.; Xavier Becerra, Attorney General; Susan S. Fiering, Supervising Deputy Attorney General; Reed Sato, Deputy Attorney General; Office of the Attorney General, Sacramento, California; Russell A. Suzuki, Acting Attorney General; Wade H. Hargrove III, Deputy Attorney General; Health and Human Services Division, Department of the Attorney General, Honolulu, Hawaii; for Intervenors.
Phillip R. Dupré (argued) and Erica M. Zilioli, Attorneys, Environmental Defense Section; Jeffrey H. Wood, Acting Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Mark Dyner, Office of the General Counsel, United States Environmental Protection Agency, Washington, D.C.; for Respondents.
Donald C. McLean, Stanley H. Abramson, Kathleen R. Heilman, and Sylvia G. Costelloe, Arent Fox LLP, Washington, D.C., for Amicus Curiae Dow Agrosciences LLC.
Susan J. Kraham and Edward Lloyd, Columbia Environmental Clinic, Morningside Heights Legal Services, New York, New York, for Amicus Curiae Congressman Henry Waxman.
OPINION
RAKOFF, District Judge:
Over nearly two decades, the U.S. Environmental Protection Agency (“EPA“) has documented the likely adverse effects of foods containing the residue of the pesticide chlorpyrifos on the physical and mental development of American infants and children, often lasting into adulthood. In such circumstances, federal law commands that the EPA ban such a pesticide from use on food products unless “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide.”
Petitioners seek review of an EPA order issued March 29, 2017 (the “2017 Order” or “Order“) that denied a 2007 petition to revoke “tolerances,” i.e. limited allowances, for the use of chlorpyrifos on food products. Petitioners argue that the EPA does not have the authority to maintain the tolеrances for chlorpyrifos under the Federal Food, Drug, and Cosmetic Act (“FFDCA“), which authorizes the EPA to “leave in effect a tolerance for a pesticide chemical residue in or on a food only if the Administrator determines that the tolerance is safe” with “safe,” in turn, defined to mean that the EPA “has determined that there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.”
We hold that obtaining a response to objеctions before seeking review by this Court is a claim-processing rule that does not restrict federal jurisdiction, and that can, and here should, be excused. There being no other reason not to do so, we grant the petition on the merits.
BACKGROUND
A. The Statutory Framework
The FFDCA authorizes the EPA to regulate the use of pesticides on foods according
The EPA‘s ability to establish tolerances depends on a safety finding. “The Administrator may establish or leave in effect a tolerance ... only if the Administrator determines that the tolerance is safe.”
The EPA is subject to these same safety standards in exercising its authority to register pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA“). See
While the EPA can act on its own initiative to establish, modify or revoke a tolerance under the FFDCA,
B. The History of this Litigation
This case arises from a 2007 petition filed under
Prior to the Petition‘s filing, the EPA already had concerns about chlorpyrifos. After reviewing the registration for chlorpyrifos in 1998 under the amended FFDCA‘s heightened safety standards that required considering cumulative exposure and the specific risks to children, the EPA cancelled all residential uses. Although the EPA continued to allow the use of chlorpyrifos as a pesticide on food crops, see
Despite these earlier expressions of concern, the EPA failed to take any decisive action in response to the 2007 Petition, notwithstanding that the EPA‘s own internal studies continued to document serious safety risks associated with chlorpyrifos use, particularly for children. A 2008 EPA Science Issue Paper, reviewing existing scientific studies, “preliminarily concluded that chlorpyrifos likely played a role” in low birth rate and delays in infant mental development observed in human cohort studies. A Science Advisory Panel convened in 2008 concurred that chlorpyrifos exposures “can lead to neurochemical and behavioral alterations [in the young] that persist into adulthood.” A Science Advisory Panel convened in 2011 found “persuasive” evidence “that there are enduring effects on the Central Nervous System ... from chlorpyrifos exposure at or above 1.0 mg/kg,” and that chlorpyrifos exposure is associated with adverse neurodevelopmental effects in children, including abnormal reflexes, pervasive development disorder, and attention and behavior problems.
Yet, even after all of these EPA studies, by 2012 the EPA still had not responded to the 2007 Petition. PANNA and NRDC thereupon petitioned this Court for a writ of mandamus to force the EPA to take action. We initially dismissed the mandamus petition, without prejudice to its renewal, based on the EPA‘s representation that it had a “concrete timeline for final agency action” to be taken on the 2007 Petition by February 2014. In re PANNA, 532 F. App‘x 649, 651 (9th Cir. 2013). When the EPA failed to respond to the 2007 Petition by September 2014, PANNA and NRDC again petitioned for mandamus, which we granted, ordering the EPA to issue a final response on the 2007 Petition by October 2015. In re PANNA, 798 F.3d 809, 815 (9th Cir. 2015).1 We found the EPA‘s delay in responding to the 2007 Petition “egregious,” especially “[i]n view of [the] EPA‘s own assessment of the dangers to human health posed by this pesticide,” noting that the EPA had recently “reported that chlorpyrifos poses such a significant threat to water supplies that а nationwide ban on the pesticide may be justified.” Id. at 811, 814.
Notwithstanding the deadline set by this Court, the EPA did not initially respond to the 2007 Petition until November 2015, when it issued a proposed rule revoking all tolerances for chlorpyrifos. Chlorpyrifos; Tolerance Revocations, 80 Fed. Reg. 69,080 (Nov. 6, 2015); see
Yet the EPA still equivocated and delayed. Accordingly, in December 2015, we ordered the EPA “to take final action by December 30, 2016 on its proposed revocation rule.” In re PANNA, 808 F.3d 402, 402 (9th Cir. 2015). In June 2016, the EPA requested a six-month extension to continue scientific analysis, a request we characterized as “another variation on a theme of partial reports, missed deadlines, and vague promises of future action that has been repeated for the past nine years.” In re PANNA, 840 F.3d 1014, 1015 (9th Cir. 2016). We found that a six-month delay was “not justified” in light of the previous time extensions and the EPA‘s “continued failure to respond to the pressing health concerns presented by chlorpyrifos,” but grantеd a three-month extension to March 2017. Id.
In the meantime, the EPA issued a 2016 Risk Assessment concluding that estimated dietary exposure to chlorpyrifos at existing tolerances exceeded what was acceptable for all population groups analyzed, with the highest risks for young children. The Risk Assessment found that scientific literature “as a whole provides evidence of long-lasting neurodevelopmental disorders” linked to chlorpyrifos exposure, with any remaining scientific uncertainties insufficient to “undermine or reduce the confidence in the findings of the epidemiology studies.” The EPA concluded that its analysis of chlorpyrifos “continues to indicate that the risk from the potential aggregate exposure does not meet the FFDCA safety standard” and that “expected residues of chlorpyrifos on most individual food crops exceed the ‘reasonable certainty of no harm’ safety standard.” Chlorpyrifos; Tolerance Revocations; Notice of Data Availability and Request for Comment, 81 Fed. Reg. 81,049, 81,050 (Nov. 17, 2016).
Then, in the Order at issue in this case, the EPA reversed its position and denied the 2007 Petition on the merits, leaving chlorpyrifos tolerances in effect. Chlorpyrifos; Order Denying PANNA and NRDC‘s Petition To Revoke Tolerances, 82 Fed. Reg. 16,581 (Apr. 5, 2017). The Order did not refute the agency‘s previous scientific findings on chlorpyrifos or its conclusion that chlorpyrifos violated the FFDCA safety standard. Instead, the EPA stated that it would not revoke tolerances as “the science addressing neurodevelopmental effects remains unresolved.”
PANNA and NRDC moved for further mandamus relief in this Court, arguing that the 2017 Order failed to respond adequately to the 2007 Petition. We denied their motion as premature because the EPA had “done what we ordered it to do,” i.e. responded to the 2007 Petition, since the 2017 Order formally denied it. In re PANNA, 863 F.3d 1131, 1132 (9th Cir. 2017). Petitioners then petitioned this Court for review of the 2017 Order. Petitioners concurrently filed objections in the EPA‘s administrative review process. Thereafter, we permitted several states that had also filed objections to the Order to intervene in this matter.
The EPA does not defend this suit on the merits, but argues that
DISCUSSION
A. Jurisdiction
The term “jurisdiction” refers specifically to “a court‘s adjudicatory authority.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160 (2010). Therefore, “a rule should not be referred to as jurisdictional unless it governs a court‘s adjudicatory capacity, that is, its subject-matter or personal jurisdiction.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011). In other words, “jurisdictional statutes speak to the power of the court rather than to the rights or obligations of the parties.” Landgraf v. USI Film Prods., 511 U.S. 244, 274 (1994).
The Supreme Court has emphasized the necessity of observing “the important distinctions between jurisdictional prescriptions and claim-processing rules.” Reed Elsevier, 559 U.S. at 161. Claim-processing rules “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” Henderson, 562 U.S. at 435. Claim-processing rules may be “important and mandatory,” but, as they do not “govern[] a court‘s adjudicatory capacity,” they can be waived by the parties or the court.
The Supreme Court has аdopted a “bright line” test for determining when to classify statutory restrictions as jurisdictional. Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006). A rule qualifies as jurisdictional only if “Congress has clearly stated that the rule is jurisdictional.” Sebelius v. Auburn Reg‘l Med. Ctr., 568 U.S. 145, 153 (2013). “[A]bsent such a clear statement,” the Supreme Court has cautioned, “courts should treat the restriction as nonjurisdictional in character,” with the specific goal of “ward[ing] off profligate use of the term ‘jurisdiction.‘” Id. In considering whether Congress has spoken clearly, courts consider both the language of the statute and its “context, including [past judicial] interpretation[s] of similar provisions.” Reed Elsevier, 559 U.S. at 168.
“[T]hreshold requirements that claimants must complete, or exhaust, before
Section 346a(h)(1), the FFDCA‘s judicial review provision, provides:
In a case of actual controversy as to the validity of any regulation issued under subsection (e)(1)(C), or any order issued under subsection (f)(1)(C) or (g)(2)(C), or any regulation that is the subject of such an order, any person who will be adversely affected by such order or regulation may obtain judicial review by filing in the United States Court of Appeals for the circuit wherein that person resides or has its principal place of business, or in the United States Court of Appeals for the District of Columbia Circuit, within 60 days after publication of such order or regulation, a petition praying that the order or regulation be set aside in whole or in part.
The (g)(2)(C) order referenced above is the order “stating the action taken upon each such objection and setting forth any revision to the regulation or prior order that the Administrator has found to be warranted,” which the EPA must issue at the conclusion of the administrative objections process outlined in § 346a(g)(2).
We must consider whether § 346a(h)(1) “clearly states” that obtaining a (g)(2)(C) order in responsе to administrative objections is a jurisdictional requirement. It does not. Section 346a(h)(1) “is written as a restriction on the rights of plaintiffs to bring suit, rather than as a limitation on the power of the federal courts to hear the suit.” Payne v. Peninsula Sch. Dist., 653 F.3d 863, 869 (9th Cir. 2011) (en banc). It delineates the process for a party to obtain judicial review, by filing suit in one of two venues within a specified time, not the adjudicatory capacity of those courts.
In Henderson, the Supreme Court evaluated a similarly structured provision, which provided that, “to obtain [judicial] review” of a final decision of the Board of Veterans’ Appeals, “a person adversely affected ... shall file a notice of appeal with the Court.” 562 U.S. at 438. The Court found this language did “not suggest, much less provide clear evidence, that the provision was meant to carry jurisdictional consequences.”
Section 346a(h)(1) similarly lacks mandatory language with “jurisdictional import.” Auburn Reg‘l Med. Ctr., 568 U.S. at 154. It merely provides that a person “may obtain judicial review.”
Aside from listing a (g)(2)(C) order as one of the orders available for judicial review, § 346a(h)(1) provides no indication that the administrative process required to produce a (g)(2)(C) order is a condition of the courts’ jurisdiction. The objections process itself is detailed in
The fact that (g)(2)(C) orders issued at the conclusion of administrative objections appear on
The Dissent finds the language of
We are also mindful what it would mean for future review of EPA decisions if we were to find obtaining a
Applying this analysis to the present case, a jurisdictional finding would mean that under no circumstances could persons obtain judicial review of a denial of a petition prior to an EPA response to an administrative objection, even under exigent circumstances where the EPA was unwilling or unable to act. The EPA could evade judicial review simply by declining to issue a
The language Congress used hardly suggests an intention to allow this scenario. Section
Furthermore,
We have recognized that “determining what has and what has not been exhausted . . . may prove an inexact science” and that “questions about whether administrative proceedings would be futile, or whether dismissal of a suit would be consistent with the general purposes of exhaustion, are better addressed through a fact-specific assessment of the affirmative defense than through an inquiry about whether the court has the power to decide the case at all.” Payne, 653 F.3d at 870. Finding that a
The EPA makes three main arguments that
First, the EPA argues that a 1996 amendment to the language of the FFDCA‘s judicial review provision changing the reviewable orders listed in
Second, the EPA argues that the structure of the administrative objections process itself indicates that the process was intended as a jurisdictional requirement, rather than a claims-processing rule. This argument relies almost entirely on the similarity between
Finally, the EPA argues that this Court‘s statement in its most recent decision in the priоr mandamus action forecloses this conclusion. It does not. That decision denied PANNA and the NRDC‘s petition for further mandamus relief because it was premised on the ground that the 2017 Order failed to meet the requirements for a final order. Rejecting that view and finding that the 2017 Order was a final denial of the 2007 Petition, this Court instructed PANNA and the NRDC that “[f]iling objections and awaiting their resolution by the EPA Administrator is a prerequisite to obtaining judicial review of [the] EPA‘s final response to the petition. Only at that point may we consider the merits of [the] EPA‘s final agency action.” In re PANNA, 863 F.3d at 1133. Aside from the fact that none of this language spoke to the jurisdictional issue but only to the issue of exhaustion, the instant appeal is clearly in a different posture. In compliance with our prior ruling, petitioners filed their objections, but the EPA has failed to issue a timely
In sum, we hold that
B. Exhaustion
Where, as here, exhaustion of administrative remedies is not jurisdictional, we “must determine whether to excuse the faulty exhaustion and reach the merits, or require the petitioner to exhaust . . . administrative remedies before proceeding in court.” Rivera v. Ashcroft, 394 F.3d 1129, 1139 (9th Cir. 2004), superseded by statute on other grounds as stated in Iasu v. Smith, 511 F.3d 881, 886 (9th Cir. 2007). “In determining whether exhaustion is required, federal courts must balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion.” McCarthy v. Madigan, 503 U.S. 140, 146 (1992), superseded by statute on other grounds as stated in Booth, 532 U.S. 731.
The Supreme Court has identified the two key institutional interests favoring exhaustion as “the twin purposes of protecting administrative agency authority and promoting judicial efficiency.” Id. at 145. Not all cases implicate these interests to an equal degree. Exhaustion protects an agency‘s authority “when the action under review involves exercise of the agency‘s discretionary power or when the agency proceedings in question allow the agency to apply its special expertise.” Id. Exhaustion also protects an agency‘s authority by providing the agency “an opportunity to correct its own mistakes with respect to the programs it administers.” Woodford v. Ngo, 548 U.S. 81, 89 (2006). “[E]xhaustion principles apply with special force when frequent and deliberate flouting of administrative processes could weaken an agency‘s effectiveness by encouraging disregard of its procedures.” McCarthy, 503 U.S. at 145.
The institutional interest in requiring exhaustion to protect agency authority appears particularly weak in the present case. The challenged action, permitting the use of chlorpyrifos on food products, does not involve exercise of the EPA‘s general discretion, but must take place in compliance
Allowing the petition to proceed would not reward failure to properly exhaust administrative remedies. “Proper exhaustion demands compliance with an agency‘s deadlines аnd other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford, 548 U.S. at 90-91.
Here, petitioners timely submitted objections to the order denying the 2007 petition to revoke tolerances, fulfilling all of their exhaustion obligations except for the one not within their control—obtaining the EPA‘s response to the objections. Petitioners’ objections were filed 13 months ago, and the key issue therein—whether the EPA was statutorily obligated to revoke the tolerance for chlorpyrifos—was first raised to the EPA over a decade ago in the 2007 Petition. This timeline has provided the EPA more than ample opportunity to correct any mistakes on its own. But, despite the statutory requirement that the EPA respond to the objections “as soon as practicable,” it has failed to do so. The history of this litigation supports the inference that the EPA is engaging in yet more delay tactics to avoid our reaching the merits of the sole statutory issue raised here: whether chlorpyrifos must be banned from use on food products because the EPA has not determined that there is a “reasonable certainty” that no harm will result from its use, even under the established tolerances.
The second institutional interest identified by the Supreme Court as potentially favoring exhaustion, judicial economy, counsels against requiring further administrative exhaustion in this instance. Exhaustion offers the greatest support for judicial efficiency where it either permits the agency to “correct its own errors” such that the “judicial controversy may well be mooted, or at least piecemeal appeals may be avoided,” or where administrative review “may produce a useful record for subsequent judicial consideration, especially in a complex or technical factual context.” McCarthy, 503 U.S. at 145. Here, it is just the opposite. Since 2012, we have issued five separate decisions related to the EPA‘s inaction on the chlorpyrifos tolerances. Declining to waive exhaustion at this point would make this our sixth decision on the matter without once reaching the merits, setting the stage for yet another “piecemeal appeal[]” if the EPA should someday issue a response to the petitioners’ objection—something the EPA itself has strongly hinted may not comе about until 2022, if then. Similarly, further development of the administrative record is of no use to judicial efficiency at this point in the proceedings; there are no factual questions, let alone “complex or technical” ones, at issue—only legal questions. And on the merits of these legal questions, the EPA offers no defense of its inaction, effectively conceding its lawlessness.
While both institutional interests favoring exhaustion are weak, this petition invokes two of the “three broad sets of circumstances in which the interests of the individual weigh heavily against requiring
In Coit Independence Joint Venture v. Federal Savings & Loan Insurance, 489 U.S. 561, 586-87 (1989), the Supreme Court held that a claimant was not required to wait for a decision on its administrative appeal before seeking judicial review where the administrative appeal had been pending for over 13 months as of the date of oral argument, and there was no “clear and reasonable time limit on [the agency‘s] consideration of . . . claims.” See also Smith v. Ill. Bell Tel. Co., 270 U.S. 587, 591-92 (1926) (holding that a claimant “is not required indefinitely to await a decision of the [administrative] tribunal before applying to a federal court for equitable relief“). Like the regulation evaluated in Coit, the EPA‘s interpretation of the FFDCA‘s administrative review provision as providing limitless time to respond to objections would give the agency “virtually unlimited discretion to bury large claims like [petitioners‘] in the administrative process, and to stay judicial proceedings for an unconscionably long period of time.” Coit, 489 U.S. at 586. The delay is particularly prejudicial here where the continued use of chlorpyrifos is associated with severe and irreversible health effects. See Bowen v. City of New York, 476 U.S. 467, 483 (1986) (concluding that disability-benefit claimants “would be irreparably injured were the exhaustion requirement now enforced against them“); Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S. 752, 773 (1947) (directing consideration of “irreparable injury flowing from delay incident to following the prescribed procedure” in determining whether to require exhaustion). Petitioners have been waiting over a year for EPA action on their objections, and over eleven years for an EPA decision on chlorpyrifos tolerances, while being continually exposed to the chemical‘s effects. This is a sufficient basis to waive or otherwise excuse exhaustion.2
In light of the strong individual interests against requiring exhaustion and weak institutional interests in favor of it, we conclude that petitioners need not exhaust their administrative objections and are not precluded from raising before us the issues at hand on the merits.3
We now turn to the merits. Petitioners argue that the EPA‘s decision in its 2017 order to maintain a tolerance for chlorpyrifos in the face of scientific evidence that its residue on food causes neurodevelopmental damage to children is flatly inconsistent with the FFDCA. Specifically, petitioners argue that a need for additional scientific rеsearch is not a valid ground for maintaining a tolerance that, after nearly two decades of studies, has not been determined safe to “a reasonable certainty,” and that the EPA cannot delay a decision on tolerances to coordinate that decision with registration review under FIFRA.
The EPA presents no arguments in defense of its decision. Accordingly, the EPA has forfeited any merits-based argument. See Martinez v. Sessions, 873 F.3d 655, 660 (9th Cir. 2017).
The FFDCA states unequivocally that the Administrator “shall modify or revoke a tolerance if the Administrator determines it is not safe.”
The EPA‘s 2016 risk assessment concluded that its analysis of chlorpyrifos “continues to indicate that the risk from potential aggregate exposure does not meet the FFDCA safety standard” and that “expected residues of chlorpyrifos on most individual food crops exceed the ‘reasonable certainty of no harm’ safety standard.” This finding was the EPA‘s final safety determination before the 2017 EPA Order. The 2017 Order declined to revoke chlorpyrifos tolerances but did not make a finding of reasonable certainty that the tolerances were safe. Instead, it found “significant uncertainty” as to the health effects of chlorpyrifos, which is at odds with a finding of “reasonable certainty” of safety under
“[H]owever desirable it may be for [the] EPA to consult [a Scientific Advisory Board] and even to revise its conclusion in the future, that is no reason for acting against its own science findings in the meantime.” Chlorine Chemistry Council v. EPA, 206 F.3d 1286, 1290 (D.C. Cir. 2000). The EPA cannot refuse to act “because of the possibility of contradiction in the future by evidence unavailable at the time of action—a possibility that will always be present.” Id. at 1290-91 (emphasis in original). Chlorpyrifos similarly does not meet the statutory requirement for registration under FIFRA, which incorporates the FFDCA‘s safety standard. As we have previously counseled, “evidence may be imperfect [and] the feasibility inquiry is formidable,” but there remains no justification for the “EPA‘s continued failure to respond to the pressing health concerns presented by chlorpyrifos,” which has now placed the agency in direct contravention of the FFDCA and FIFRA. In re PANNA, 840 F.3d at 105.
Accordingly, we GRANT the petition for review. The EPA‘s 2017 Order maintaining chlorpyrifos is VACATED, and the case is remanded to the EPA with directions to revoke all tolerances and cancel all registrations for chlorpyrifos within 60 days.
FERNANDEZ, Circuit Judge, dissenting:
League of United Latin American Citizens, Pesticide Action Network North
The EPA regulates the use of pesticides on food pursuant to the Federal Food, Drug, and Cosmetic Act2 (FFDCA) and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).3 At present, the Pesticide is registered as an insecticide for food crops and non-food settings. In the view of LULAC and the States, the Pesticide is unsafe4 and the EPA should modify or revoke the tolerances it has established for the Pesticide pursuant to FFDCA. See
LULAC and certain states filed objections to the 2017 Order on June 5, 2017, and on that same date, LULAC filed the instant petition for review of the merits of the 2017 Order.
JURISDICTION
The majority holds that we have jurisdiction over the petition for review. I disagree. Of course, we do have jurisdiction to determine whether wе have jurisdiction over the petition for review. See Special Invs. Inc. v. Aero Air Inc., 360 F.3d 989, 992 (9th Cir. 2004). Nonetheless, “‘[w]e presume that federal courts lack jurisdiction unless the contrary appears affirmatively from the record.‘” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3, 126 S. Ct. 1854, 1861 n.3, 164 L. Ed. 2d 589 (2006). Thus, “the party asserting federal jurisdiction . . . has the burden of establishing it.” Id. Here LULAC5 attempts to meet that burden by pointing to the judicial review provisions of FFDCA. See
A. Jurisdiction Under FFDCA
The 2017 Order was issued pursuant to
In a case of actual controversy as to the validity of . . . any order issued under subsection . . . (g)(2)(C) [of this section], . . . any person who will be adversely affected by such order . . . may obtain judicial review by filing in the United States Court of Appeals for the circuit wherein that person resides or has its principal place of business . . . a petition praying that the order . . . be set aside in whole or in part.
Unfortunately for LULAC‘s argument, the subsection referred to in the above quotation from
But, says LULAC, the requirement is no more than a claim-processing rule8 rather than a true jurisdictional rule.9 The majority agrees; I am not convinced. Here Congress was very careful and very specific about the class of cases—the limited kind of orders—over which it wished to give the courts of appeals direct review. It made it plain that we could not review the EPA‘s actions in this specific area until the agency had developed and considered a full record regarding objections and the like. Before that occurred, judicial review was not available; we had no authority whatsoever to consider the issue. As the Second Circuit Court of Appeals has pointed out,
In short, I see no basis for deconstructing that carefully constructed jurisdictional scheme and thereby inviting premature attacks on matters committed to the expertise of the agency in the first instance.11
B. Jurisdiction under FIFRA
LULAC then argues that because it not only asked for the EPA to revoke all tolerances for the Pesticide but also asked the EPA to cancel all registrations for the Pesticide, the 2007 Petition to the EPA arose under both the FFDCA and FIFRA. Thus, it argues, it need not abide by the FFDCA review provisions, but can rely on the jurisdictional provisions of the FIFRA to establish our jurisdiction. See
Rather, I am persuaded by the cogent reasoning of the Second Circuit Court of Appeals in a strongly similar situation. See Johnson, 461 F.3d at 176. In that case, pursuant to the FFDCA provisions, NRDC also challenged the EPA‘s setting of tolerances for residues on food of five pesticides (not including the Pesticide). Id. at 169-70. NRDC added that their registration should be cancelled pursuant to FIFRA. Id. at 176. NRDC had brought its action in the district court, and on appeal the Second Circuit determined that the district court did not have jurisdiction to review the EPA determination under the FFDCA because, as
However, FIFRA‘s grant of jurisdiction to the district courts is irrelevant. The
NRDC Appellants “challenge the registration of pesticides under FIFRA only through their challenge to the tolerances set under the [F]FDCA.” Essentially, therefore, the violations of FIFRA alleged by the NRDC Appellants “amount to challenges to the methodologies used in reaching the reassessment determinations at issue” in this case. As such, these challenges represent an “issue as to which review is or was obtainable under Section 346a(h). Section 346a(h)(5) precludes judicial review of these issues “under any other provision of law.” The NRDC Appellants’ attempt to find independent jurisdiction for their claims under FIFRA is thus precluded by the express language of § 346a(h)(5). The NRDC Appellants’ claims are reviewable only in the courts of appeals, and only after they have exhausted the statutory provisions for administrative review.
Id. at 176 (citations omitted).
I accept that reasoning and the same reasoning should apply here. It would foreclose LULAC‘s argument. LULAC essentially argues that the EPA has erred in maintаining tolerances for the Pesticide, which is an unsafe insecticide, and for that same reason it argues that the EPA must forthwith revoke registration of the Pesticide. It argues that it should not have to wait for the EPA to rule on its registration claim, but that is just an allotrope of its central arguments against waiting for relief under the FFDCA tolerances provision with which its FIFRA argument is “inextricably intertwined.” See Ctr. for Biological Diversity v. U.S. EPA, 847 F.3d 1075, 1089 (9th Cir. 2017). Therefore, the FIFRA provision does not offer a way to avoid the judicial review provisions of the FFDCA in this instance.
Thus, I would dismiss the petition for review for lack of jurisdiction.12
WRIT OF MANDAMUS
In its briefs, LULAC asks us to issue a writ of mandamus13 directing that the EPA respond to its objections within sixty days. However, LULAC did not file a petition for issuance of that writ and, therefore, made no attempt to comply with the Federal Rules of Appellate Procedure when it filed its petition for review of the merits of the 2017 Order. See
Thus, this case is quite unlike cases where we decided that a party improperly sought to appeal an interim procedural order rather than a decision on the merits of a case, but we also considered whether we should construe the appeal as a petition for a writ of mandamus. See Kum Tat Ltd. v. Linden Ox Pasture, LLC, 845 F.3d 979, 983 (9th Cir. 2017) (discussing order denying arbitration request); Johnson v. Consumerinfo.com, Inc., 745 F.3d 1019, 1023 & n.2 (9th Cir. 2014) (discussing order compelling arbitration and staying judicial proceedings); see also United States v. Davis, 953 F.2d 1482, 1497-98 (10th Cir. 1992) (dismissing request for mandamus by defense counsel in criminal conviction appeal where no petition had been filed); EEOC v. Neches Butane Prods. Co., 704 F.2d 144, 146, 151-52 (5th Cir. 1983) (denying request that an appeal from a stay of proceedings pending compliance with discovery orders be treated as a mandamus petition where requesting party was represented by competent counsel and should have filed a petition therefor); Jones & Guerrero Co., Inc. v. Sealift Pac., 650 F.2d 1072, 1073-74 (9th Cir. 1981) (per curiam) (refusing to construe appeal from order remanding case to Guam Superior Court as a petition for mandamus where no mandamus petition filed).
In short, I would decline to treat LULAC‘s petition as one for a writ of mandamus. Of course, I express no opinion on whether or when LULAC can or should file a petition for a writ of mandamus because LULAC deems the EPA‘s consideration of the objections to have been unduly delayed. See PANNA v. U.S. EPA (In re PANNA), 798 F.3d 809, 813 (9th Cir. 2015); Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984).
Thus, I respectfully dissent from parts A and B of the Discussion in the majority opinion. As a result, I do not decide the issue in part C although I do find the discussion therein does have some persuasive value.