League of United Latin Am. Citizens v. Regan
| Citation | 996 F.3d 673 |
| Decision Date | 29 April 2021 |
| Docket Number | No. 19-71982,No. 19-71979,19-71979 |
| 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; Labor Council for Latin American Advancement ; Learning Disabilities Association of America ; National Hispanic Medical Association; Pineros y Campesinos Unidos del Noroeste ; United Farm Workers; GreenLatinos, Petitioners, v. Michael S. REGAN, Administrator, United States Environmental Protection Agency; U.S. Environmental Protection Agency, Respondents. State of New York; State of California; State of Washington; State of Maryland; State of Vermont; Commonwealth of Massachusetts, Petitioners, District of Columbia; State of Hawaii; State of Oregon, Intervenors, v. Michael S. Regan, Administrator, United States Environmental Protection Agency; U.S. Environmental Protection Agency, Respondents. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Patti A. Goldman (argued), Marisa C. Ordonia, and Kristen L. Boyles, Earthjustice, Seattle, Washington, for Petitioners 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, Labor Council for Latin American Advancement, Learning Disabilities Association of America, National Hispanic Medical Association, Pineros y Campesinos Unidos del Noroeste, United Farm Workers, and GreenLatinos.
Frederick A. Brodie (argued), Assistant Solicitor General Of Counsel; Andrea Oser, Deputy Solicitor General; Barbara D. Underwood, Solicitor General; Letitia James, Attorney General; Office of the Attorney General, Albany, New York; Xavier Becerra, Attorney General; Christie Vosburg, Supervising Deputy Attorney General; Reed Sato, Deputy Attorney General; Office of the Attorney General, Sacramento, California; Robert W. Ferguson, Attorney General; William R. Sherman, Counsel for Environmental Protection; Attorney General's Office, Seattle, Washington; Brian E. Frosh, Attorney General; Steven M. Sullivan, Solicitor General; Joshua M. Segal, Special Assistant Attorney General; Office of the Attorney General, Baltimore, Maryland; Thomas J. Donovan Jr., Attorney General; Nichols F. Persampieri, Assistant Attorney General; Office of the Attorney General, Montpelier, Vermont; Clare E. Connors, Attorney General; Wade H. Hargrove III, Deputy Attorney General; Department of the Attorney General, Honolulu, Hawaii; Ellen F. Rosenblum, Attorney General; Benjamin Gutman, Solicitor General; Office of the Attorney General, Salem, Oregon; 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; Loren L. Alikhan Solicitor General; Caroline S. Van Zile, Principal Deputy Solicitor General; Brian R. Caldwell, Assistant Attorney General, Public Integrity Unit; Office of the Attorney General, Washington, D.C.; for Petitioners States of New York, California, Washington, Maryland, Vermont, Hawaii, Oregon, the Commonwealth of Massachusetts, and the District of Columbia.
Mark L. Walters (argued) and Jessica O'Donnell, Environmental Defense Section, United States Department of Justice, Washington, D.C.; Angela Huskey, Office of General Counsel, United States Environmental Protection Agency, Washington, D.C.; for Respondents.
Shaun A. Goho, Emmett Environmental Law & Policy Clinic, Harvard Law School, Cambridge, Massachusetts, for Amici Curiae American Academy of Pediatrics, Alliance of Nurses for Healthy Environments, American Public Health Association, Migrant Clinicians Network, Physicians for Social Responsibility, and Union of Concerned Scientists.
Edward Lloyd, Jacob Elkin, Claire MacLachlan, and Basil Oswald, Columbia Environmental Clinic, Morningside Heights Legal Services, New York, New York, for Amicus Curiae Congressman Henry Waxman.
Kathryn E. Szmuszkovicz and Andrew C. Stilton, Beveridge & Diamond P.C., Washington, D.C.; Rachel Lattimore, Senior Vice President & General Counsel; Ashley Boles, Counsel; CropLife America, Washington, D.C.; for Amicus Curiae CropLife America.
David Y. Chung, Kirsten L. Nathanson, and Elizabeth B. Dawson, Crowell & Moring LLP, Washington, D.C., for Amici Curiae Agribusiness Council of Indiana, Agricultural Retailers Association, American Farm Bureau Federation, AmericanHort, American Seed Trade Association, American Soybean Association, American Sugarbeet Growers Association, Beet Sugar Development Foundation, California Alfalfa and Forage Association, California Citrus Mutual, California Cotton Ginners and Growers Association, California Seed Association, California Specialty Crops Council, California Walnut Commission, Florida Fruit and Vegetable Association, National Agricultural Aviation Association, National Association of Wheat Growers, National Corn Growers Association, National Cotton Council, National Onion Association, National Sorghum Producers, North Dakota Grain Growers Association, Oregonians for Food and Shelter, Washington Friends of Farms & Forests, Western Agricultural Processors Association, Western Growers, and Western Plant Health Association.
Before: Jay S. Bybee and Jacqueline H. Nguyen, Circuit Judges, and Jed S. Rakoff,* District Judge.
This dispute concerning the documented health risks posed by a widely used pesticide, chlorpyrifos, has been before this Court more than a half-dozen times. The Environmental Protection Agency ("EPA" or the "Agency") has recognized that when pregnant mothers are exposed to chlorpyrifos residue, this likely harms infants in utero . Nevertheless, in derogation of the statutory mandate to ban pesticides that have not been proven safe, the EPA has failed to act, requesting extension after extension. The Agency's present position is effectively more of the same.
The proceeding began in 2007, when two environmental non-profit organizations – Pesticide Action Network North America ("PANNA") and the Natural Resources Defense Council, Inc. ("NRDC") – filed a petition (the "2007 Petition") asking the EPA to prohibit foods that contain any residue of the insecticide chlorpyrifos. Then, and now, the EPA has permitted distribution of food containing chlorpyrifos residue as long as the residue is less than a limit known as a "tolerance," which varies depending on the food. The 2007 Petition argued that, even at levels beneath these tolerances, chlorpyrifos poses neurodevelopmental risks, especially to infants and children.
The Federal Food, Drug and Cosmetic Act ("FFDCA") provides that the EPA's 1 The statute also requires that the EPA "ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue" and "publish a specific determination regarding the safety of the pesticide chemical residue for infants and children."2
Since 2007, the evidence of harm has continued to build, primarily through two kinds of studies: experimental studies on live mice and rats and epidemiological studies tracking humans who were exposed to chlorpyrifos in utero . Between 2007 and 2016, the EPA published several Human Health Risk Assessments regarding chlorpyrifos and convened its Scientific Advisory Panel ("SAP") several times. Those assessments and SAP reviews increasingly recognized the persuasiveness of the studies showing chlorpyrifos's risks. Nevertheless, the EPA declined to take final action on the 2007 Petition for more than a decade. Eventually, PANNA, NRDC, and others sought judicial relief, and this Court issued multiple writs of mandamus requiring the EPA to move forward. But, festina lente , the EPA continued to delay ruling on the 2007 Petition. This, moreover, was despite the fact that in November 2015, the EPA published a Notice of Proposed Rulemaking that proposed to revoke all chlorpyrifos tolerances because the EPA could not find them to be safe. Similarly, in 2016, the EPA issued a Revised Human Health Risk Assessment finding that the present tolerances are "not sufficiently health protective."3
In 2017, the EPA, pursuant to a court-set deadline, finally ruled on the 2007 Petition. But in the very face of its own prior acknowledgements of the health risks posed by chlorpyrifos, the EPA denied the 2007 Petition, and in 2019 denied all objections to that decision. In reality, however, this was just one more attempt at delay, because the EPA did not conclude that the tolerances were safe, but simply denied the Petition on the ground that the EPA would forgo further consideration of the question of safety until chlorpyrifos underwent a registration re-review under a separate statute, which could be as late as 2022. As explained below, this delay tactic was a total abdication of the EPA's statutory duty under the FFDCA.
In short, the EPA has spent more than a decade assembling a record of chlorpyrifos's ill effects and has repeatedly determined, based on that record, that it cannot conclude, to the statutorily required standard of reasonable certainty, that the present tolerances are causing no harm. Yet, rather than ban the pesticide or reduce the tolerances to levels that the EPA can find are reasonably certain to cause no harm, the EPA has sought to evade, through one delaying tactic after another, its plain statutory duties. The FFDCA permits no further delay. Accordingly, for the reasons that follow, the Court...
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...rely on ambiguous studies as evidence of a conclusion that the studies do not support." Id. ; see also League of United Latin Am. Citizens v. Regan , 996 F.3d 673, 701 (9th Cir. 2021) ("[Because] EPA represents that there are ‘uncertainties concerning the impact of chlorpyrifos on children’......
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