Do your job, and do it now, says the Ninth Circuit to the EPA

In re Pesticide Action Network N. Am., No. 14-72794 (9th Cir. Aug. 10, 2015).

 The EPA recognizes that the pesticide chlorpyrifos may pose a threat to farmworkers. (credit: USDA / flickr)

The EPA recognizes that the pesticide chlorpyrifos may pose a threat to farmworkers. (credit: USDA / flickr)

“Although filibustering may be a venerable tradition in the United States Senate, it is frowned upon in administrative agencies tasked with protecting human health,” this opinion begins. The reader may guess what follows: a judicial tongue-lashing of an administrative agency.

In 2007, two environmental organizations filed a petition with the EPA, asking that the agency ban the pesticide chlorpyrifos. In classifying chlorpyrifos as safe, say the organizations, the EPA ignored evidence of toxicity. In 2010, the organizations filed suit in federal court, asking the court to order the EPA to act on the petition, but they stipulated to dismissal five months later, relying on the EPA’s promise that it would issue a final response to the petition by November 2011. But the EPA never issued a final response. 

The organizations then filed a mandamus petition with the Ninth Circuit, which the Ninth Circuit denied on the ground that the EPA had a “concrete timeline” for issuing a final response by February 2014. But the EPA missed that deadline.

So the organizations filed this renewed mandamus petition with the Ninth Circuit. The Ninth Circuit asked the EPA when it intended to issue a final response. The EPA said it planned to issue a proposed response—a response in which it would ban chlorpyrifos—by April 2016. But it said that further negotiations with pesticide manufacturers might make that proposed response unnecessary. 

The Ninth Circuit is fed up with the delay. EPA now concedes that chlorpyrifos poses a possible threat to health. This fact, combined with the unreasonable delay in responding to the environmental organizations’ petition, demands that the court issue a writ of mandamus. The EPA is ordered to issue a final response to the petition—or a ban on chlorpyrifos, which would moot the petition—by October 31, 2015.