Notice & Comment

D.C. Circuit Review: Reviewed – Holiday Mandamus

For this holiday week, there was one item on the menu at the D.C. Circuit: the extraordinary remedy of mandamus. The EPA’s violation of law, it turned out, was clearer than crystal.

In re Center for Biological Diversity granted the writ to force EPA to do something that the D.C. Circuit told it to do five years ago. That something is a requirement stemming from the Endangered Species Act (ESA)’s intersection with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

This case is not a feast.

The ESA requires the EPA to determine whether a proposed action will have an adverse effect on endangered species. This requirement applies when EPA is deciding whether to register a pesticide under FIFRA.

The problem is that EPA doesn’t follow the ESA when it registers pesticides under FIFRA. As of 2022, EPA “has faced at least twenty lawsuits covering 1,000 improperly registered pesticides.” One of those pesticides is cyantraniliprole. Not a household name, but apparently it protects something that many households enjoy: citrus and blueberries. In 2017, the D.C. Circuit held that EPA violated the ESA when it registered cyantraniliprole without making an effects determination. The court did not vacate the registration, however, because the petitioners didn’t ask for vacatur, which might have had the perverse effect of increasing the use of more toxic pesticides. Instead, the court instructed the EPA to make an effects determination and replace the registration order with one that complied with the law.

A lot has happened in the five years since that remand without vacatur. But the effects determination hasn’t.

Time’s up, the D.C. Circuit held. Or time’s almost up. Or, more accurately, time will be up in ten months. The EPA has promised an effects determination for cyantraniliprole by September 2023. Apparently, the EPA was waiting until it had developed a program for fulfilling its ESA obligations when it comes to pesticide registration. Applying the TRAC factors, the court, in an opinion by Senior Judge Tatel, joined by Judges Millett and Rao, held that mandamus was warranted notwithstanding EPA’s promise to complete an effects determination soon(ish).

Throughout its opinion, the court stressed that the agency had violated both a statutory deadline and a court order, such that “[t]he executive stands alone in opposition to both the judiciary and the legislature.” Accordingly, a “lesser showing was necessary to justify mandamus,” although the petitioners had no difficulty showing that the ordinary TRAC factors counseled in favor of granting the writ.

Put simply, the court explained, “[w]e . . . have reason to doubt whether EPA will meet its own deadline.”

Why doubt the EPA? Well, for one thing, EPA “warns it may not meet the deadline.” Moreover, “EPA failed to announce its commitment to the September 2023 deadline until after petitioners sought mandamus.” A court “need not find bad faith to find unreasonable delay.” EPA has many obligations and finite resources, as its counsel stressed. Even so, the D.C. Circuit reasoned, at some point there is a limit to those sorts of excuses in the face of “a statutory deadline and court order.” And “EPA has passed that limit.”

EPA’s now on the clock. Interestingly, the court retained jurisdiction to monitor the agency’s progress, requesting status updates every 60 days.

Stay tuned to see if vacatur’s on the menu for next holiday season.

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