In re Pesticide Action Network North America; Natural Resources Defense Council, Inc.,
U.S. Environmental Protection Agency, Respondent. Pesticide Action Network North America; Natural Resources Defense Council, Inc., Petitioners,
A. Goldman and Kristen Boyles, Earthjustice, Seattle,
Washington, for Petitioners.
M. Zilioli, Environmental Defense Section; John C. Cruden,
Assisant Attorney General, Environment & Natural
Resources Division; United States Department of Justice,
Washington, D.C.; Mark Dyner, Office of General Counsel;
United States Environmental Protection Agency, Washington,
D.C.; for Respondents.
Stanley H. Abramson, Donald C. McLean, Kathleen R. Heilman,
and Sylvia G. Costelloe, Arent Fox LLP, Washington, D.C., for
Amici Curiae CropLife America, Agricultural Retailers
Association, Almond Alliance of California, American Soybean
Association, Beet Sugar Development Foundation, California
Citrus Mutual, National Agricultural Aviation Association,
National Corn Growers Association, National Cotton Council,
National Potato Council, National Sorghum Producers,
Oregonians for Food & Shelter, Schertz Aerial Service
Inc., U.S. Apple Association, Washington Friends of Farms
& Forests, and Western Growers Association.
Before: Diarmuid F. O'Scannlain, A. Wallace Tashima, and
M. Margaret McKeown, Circuit Judges.
panel denied the United States Environmental Protection
Agency's request for an additional six months to take
final action on its proposed revocation rule and its final
response to Pesticide Action Network North American and
Natural Resources Defense Counsel's 2007 administrative
panel held that the requested six-month delay was not
justified in light of the EPA's history in the matter, as
well of the court's previous extensions. The panel
directed the EPA to take final action by March 31, 2017. The
panel retained jurisdiction over any further related
"extraordinary circumstances, " the United States
Environmental Protection Agency ("EPA") requests an
additional six month extension to take final action on its
proposed revocation rule and its final response to Pesticide
Action Network North America and Natural Resources Defense
Council's (collectively, "PANNA") 2007
administrative petition. CropLife and the other amici would
double that extension. PANNA asks us to deny the EPA's
request in light of the nearly decade-long delay in issuance
of the rule and the documented health risks.
"extraordinary circumstances" claimed this time-
that EPA issued its proposed rule before completing two
studies that may bear on the Agency's final rule-is
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 Pesticide
Action Network, 798 F.3d 809, 811 (9th Cir. 2015).
EPA's continued delay is all the more significant since
there are "considerable human health interests
prejudiced by it." Id. at 814.
nine-year delay in taking action was "objectively
extreme" when we received PANNA's petition for
mandamus, and nothing has changed that would justify
EPA's continued failure to respond to the pressing health
concerns presented by chlorpyrifos. While we acknowledge that
"evidence may be imperfect . . . the feasibility inquiry
is formidable, and . . . premature rulemaking is
undesirable", Public Citizen Health Research Grp. v.
Chao, 314 F.3d 143, 154-55 (3d Cir. 2002), at this
stage, a claim of premature rulemaking has come and gone. The
requested six-month delay is not justified in light of
EPA's history in this matter as well as the court's
request for an additional six months to take final action is
DENIED. EPA is directed to take final action by March 31,
2017. This is the final extension, and the court will not
grant any further extensions.
panel shall retain jurisdiction over any further proceedings