League of United Latin Am. Citizens v. Wheeler
| Decision Date | 09 August 2018 |
| Docket Number | No. 17-71636,17-71636 |
| Citation | 899 F.3d 814 |
| Parties | 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, 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, v. Andrew WHEELER, Acting Administrator of the U.S. Environmental Protection Agency; and U.S. Environmental Protection Agency, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
Shaun A. Goho, Emmett Environmental Law & Policy Clinic, Harvard Law School, Cambridge, Massachusetts, for Amici Curiae Health Professional Organizations.
On Petition for Review of an Order of the Environmental Protection Agency
Before: Ferdinand F. Fernandez and Jacqueline H. Nguyen, Circuit Judges, and Jed S. 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." 21 U.S.C. § 346a(b)(2)(A)(ii). Yet, over the past decade and more, the EPA has stalled on banning chlorpyrifos, first by largely ignoring a petition properly filed pursuant to law seeking such a ban, then by temporizing in response to repeated orders by this Court to respond to the petition, and, finally, in its latest tactic, by denying outright our jurisdiction to review the ultimate denial of the petition, even while offering no defense on the merits. If Congress’s statutory mandates are to mean anything, the time has come to put a stop to this patent evasion.
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 tolerances 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." 21 U.S.C. § 346a(b)(2)(A)(i)–(ii). Respondent, the EPA, has never made any such determination and, indeed, has itself long questioned the safety of permitting chlorpyrifos to be used within the allowed tolerances. The EPA, therefore, does not defend the 2017 Order on the merits. Instead, the EPA argues that, despite petitioners having properly-filed administrative objections to the 2017 Order more than a year ago, and despite the statutory requirement that the EPA respond to such objections "as soon as practicable," the EPA’s utter failure to respond to the objections deprives us of jurisdiction to adjudicate whether the EPA exceeded its statutory authority in refusing to ban use of chlorpyrifos on food products.
We hold that obtaining a response to objections 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.
The FFDCA authorizes the EPA to regulate the use of pesticides on foods according to specific statutory criteria. 21 U.S.C. §§ 301 – 399i. The FFDCA prescribes that food with "any pesticide chemical residue ... shall be deemed unsafe" and barred from movement in interstate commerce. Id. § 346a(a)(1). However, it grants the EPA a limited authority to establish tolerances for pesticides meeting statutory qualifications, enabling foods bearing residues of those pesticides within these tolerances to move in interstate commerce. See id. § 346a(a), (a)(4), (b)(1).
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." Id. § 346a(b)(2)(A)(i). A tolerance qualifies as safe if "the Administrator has determined 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 for which there is reliable information." Id. § 346a(b)(2)(A)(ii) (emphasis added). To make such a determination, the EPA must perform a safety analysis to "ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure" and "publish a specific determination regarding the safety of the pesticide chemical residue for infants and children." Id. § 346(b)(2)(C)(ii)(I)–(II). Furthermore, even after establishing a tolerance, the EPA bears continuous responsibility to ensure that the tolerance continues to satisfy the FFDCA’s safety standard; the FFDCA provides that the Administrator may "leave in effect a tolerance ... only if the Administrator determines that the tolerance is safe" and "shall modify or revoke a tolerance if the Administrator determines it is not safe." Id. § 346a(b)(2)(A)(i).
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 7 U.S.C. § 136a(a). The EPA Administrator must register a pesticide—which is a requirement for pesticides to be distributed or sold—when, among other qualifications, the pesticide does not have "unreasonable adverse effects on the environment." Id. § 136a(c)(5) (D). FIFRA incorporates the FFDCA’s safety standard into the definition of "unreasonable adverse effects" to include "a human dietary risk from residues that result from a use of a pesticide in or on any food inconsistent with the standard under [the FFDCA]." Id. § 136(bb). FIFRA requires the EPA to reevaluate pesticides periodically after approval. Id.
While the EPA can act on its own initiative to establish, modify or revoke a tolerance under the FFDCA, 21 U.S.C. § 346a(e)(1), "[a]ny person may file ... a petition proposing the issuance of [such] a regulation." Id. § 346a(d)(1). After "due consideration," the EPA Administrator must issue either a proposed or final regulation or an order denying the petition. Id. § 346a(d)(4)(A). After this response, "any person may file objections thereto with the Administrator." Id. § 346a(g)(2)(A). The FFDCA directs that the Administrator "shall issue an order [known as a ‘g(2)(C) order’] stating the action taken upon each ... objection" "[a]s soon as practicable." Id. § 346a(g)(2)(C). "[A]ny person who will be adversely affected" by that order or the underlying regulation "may obtain judicial review by filing in the United States Court of Appeals" a petition for review. Id. § 346a(h)(1).
This case arises from a 2007 petition filed under 21 U.S.C. § 346a(d) proposing that the EPA revoke tolerances for the pesticide chlorpyrifos (the "2007 Petition" ...
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