In re PESTICIDE ACTION NETWORK NORTH AMERICA; NATURAL RESOURCES DEFENSE COUNCIL, INC.
No. 14-72794
United States Court of Appeals, Ninth Circuit
August 10, 2015
798 F.3d 809
O‘SCANNLAIN, TASHIMA, and McKEOWN, Circuit Judges
Argued and Submitted June 1, 2015.
B
The interests of Bonneville‘s wholesale energy customers and their organizational allies do not align with these goals. Ultimate consumers of energy plainly stand to benefit from open access and increased competition in energy markets. See Order No. 890, Preventing Undue Discrimination & Preference in Transmission Serv., F.E.R.C. Stats. & Regs. ¶31,241, 160, 72 Fed.Reg. 12,266, 12,276 (2007) (noting that impeded access to transmission “can have significant cost impacts on consumers“). But the interests of Bonneville‘s wholesale energy customers are different. They seek to reduce Bonneville‘s costs, which are passed on to them by statutory mandate. This goal is, at best, “orthogonal” to the purposes of a statutory provision intended to increase access to transmission markets.12 Grand Council of Crees, 198 F.3d at 958; cf. Ashley Creek, 420 F.3d at 936-37, 940 (noting that bare economic interests are outside the zone of interests of the National Environmental Policy Act, which protects environmental interests, regardless of whether economic and environmental interests coincide). Indeed, as this litigation demonstrates, it can be diametrically opposed to the statute‘s purposes. Congress sought to open access and increase compеtition, while the petitioners seek to reduce access by asserting Bonneville‘s unilateral right to transmit only its own electricity during overgeneration events. Cf. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 582-83, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (“Nor can respondents recover damages for any conspiracy by petitioners to charge higher than competitive prices.... Such conduct would indeed violate the Sherman Act, but it could not injure respondents: as petitioners’ competitors, respondents stand to gain from any conspiracy to raise the market price....” (citations omitted)). The likelihood that Bonneville‘s wholesale energy customers will “frustrate [rather] than further [the] statutory objectives” renders them unreliable litigants under § 211A. Clarke v. Sec. Indus. Ass‘n, 479 U.S. 388, 397 n. 12, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). The zone-of-interests test is therefore not satisfied, and the petitioners lack statutory standing.
IV
The petitions for review are therefore DENIED.
v.
U.S. Environmental Protection Agency, Respondent.
Patti A. Goldman (argued), Matthew Baca, and Kristen Boyles, Earthjustice, Seattle, WA, 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
Opinion by Judge McKEOWN, Circuit Judge:
Although filibustering may be a venerable tradition in thе 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 pеtition 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 thаt 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.
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 fоr which there is reliable information.”
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,
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 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 сhallenging 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)).
In April 2012, Pesticide Action Network filed a petition for a writ of mandamus in the Ninth Circuit (“the 2012 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 Fed.Appx. 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 “оur 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 later baсktracked 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.2015).
In rеsponse to that order, EPA asserted that its concerns about contamination of
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 does. EPA has spent nearly a decade reviewing Pesticide Action Network‘s data and arguments. Even in responsе 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 unreasonаble 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.”
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:
- the time agencies take to make decisions must be governed by a rule of reason;
- 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 schеme may supply content for this rule of reason;
- delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;
- the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;
- the court should also take into account the nature and extent of the interests prejudiced by delay; and
- 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 Net-
EPA would have us adhere tо 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 аlso 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 аnd 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.
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 heаlth 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 thе 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
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 presentеd to the court will prevent its compliance.
The petition for a writ of mandamus is GRANTED.