counsel i'll try to remind you but of course you should watch your own time and you can go over the time if you have questions for the panel that require answering the keep it going but otherwise if you could try to live with the time that would be crazy well that may it please the court over ten years ago an r t c petition to e p a to ban the use of a dangerous pesticide in house d pet products where it can cause permanent damage to young children's developing brains four years ago e p a told this court that it was quote committed to completing remain proceedings in a reasonable time frame and specifically that intended to respond to enter the petition within ninety days of finalizing a new risk assessment it has now been more than one thousand one hundred dollars days since that final risk assessment confirmed that these products are unsafe and that there is quote a need to protect children from the pesticides effects if during the last three years e p a has made no meaningful progress to to resolve energy sees petition much less to begin proceedings to ban these dangerous products when now says that it does not plan to do so for at least another year and four months it is clear that this court must step in and issue a writ of mandamus ordering e p a to act given the many years of delay that have passed e p a s pattern of broken promises and its uncontested finding that these products are unsafe for a estimates that as many as ten percent of households with pets use these products so every day of additional delay is another day that hundreds of thousands if not millions of children are being exposed to a pesticide in their homes that e p a concedes may be permanently damaging their brains e p a points to only two things in an effort to defend it preferred timetable for responding to energy sensible titian but neither can justify any further delay burst e p a points to additional data that it requested from the manufacturer notably only after energy c filed this mandamus petition about the degree to which its pet callers released the pesticide in liquid versus powder form p a s final risk assessment from three years ago found that all callers pose risks of concern to young kids quote regardless of the ratio of the liquid dust to suit so while this additional data might allow e p a to fine tune its estimated exposures it is not going to change e p a s own underlying finding that the products themselves are unsafe and in any event e p a s twenty eight dollars j letter from just a few days ago confirms that this data cannot provide or provide any basis for further delay because e p a has completed its review of this data over two months ago so by e p a is own account it has now completed its review of all of the data it needs to act on these unsafe products second e p a points to its desire to delay resolving energy sees petition until it completes its separate obligation to conduct a registration review for all of the pesticides other uses but e p a has previously recognized that by statute it quote must continue to respond to emerging risk concerns and not defer action until the pesticides regularly scheduled registration review that is for good reason congress created the registration review process as a backstop to make sure that the e p a looked at all the pesticides uses at least once every fifteen years but congress did not want e p a to delay taking action on dangers that it found in the meantime the facts of this case demonstrate exactly why that is so e p a already has all of the data it needs to act on these products it simply does not make sense for e p a to refrain from taking action while it completes its registration review for other uses in addition e p a has now repeatedly delayed its own internal timetables for completing its registration review process without providing any explanation so allowing p p a to delay resolving energy sees petition pending its completion of the registration review based on its estimated or expected time tables that it is now giving this court is simply as an pesticide action network a roadmap for further delay in terms of the content of the writ your honour's this court's thoughtful remedy discussion in community voice lays out some of the options available to the panel as well as an appropriate path forward for this case specifically the court should  st order e p a to respond to our petition within a short period of time such as sixty or at most ninety days by either denying our petition or initiating the cancellation process by sending a proposed notice of intent to cancel it to the department of agriculture and the fit for a science advisory panel nd and perhaps even more importantly the court should retain jurisdiction until e p a takes a c petition d p a to cancel the registration of these dangerous products so simply beginning the cancellation process will not conclude the matter presented to the agency e p a will not fulfill its obligation under the circuit has explained that the primary purpose of the rich in circumstances like these is to ensure that an agency does not thwart the court's jurisdiction by withholding a judicially reviewable decision but that is essentially what deny your administrators the petition and just say that it needs more time to study the issues and would not bring this back to square one your honor we do not believe a would be able to do that based on its own regulations and its own representations to this court the only data that e p a has said that it still needs is this study about the exact percentage of how much of the pesticide is being released from the pet collars and liquid or powder form an e p a is twenty eight dollars j letter to the school confirms that it completed its review of that study over two months ago so e p a by its own account does not have any additional study that it needs to do  nd as we were discussing e p a has itself recognized that it cannot and must continue to respond to emerging risk concerns and may not be for action pending its regularly scheduled registration  all products involved in this quest which is a distinguishing factor i believe again what occurred in the other cases that have been granted a bit in the night circ and i guess is this distinguishing factor here make a difference i know your honour's and it's not quite a distinguishing factor because the same registration review process applies to all pesticides so e p a also had this registration review obligation regarding corp arafat us which is the pesticide that this court has repeatedly and mandamus order against the agency on and which is a sister pesticide the pesticide at issue here so this same registration review process by which congress had created this backstop for e p a to analyze all of the uses every fifteen years applied just the same in that case and as we were discussing e p a itself has recognized that that registration review process does not give it a basis to decline to act on emerging risks in dangerous products as it learns of them as it has here as its own scientists confirmed that these products are unsafe regarding the june two thousand and twenty one date your honour's i would point to the e p a is declaration that it submitted in support of its brief paragraph thirty two dollars lays out the timetable that it would like if it is allowed to delay responding to our petition until it completes its registration review paragraph thirty three is the time table in which it concedes that it can resolve our petition without completing registration so i would encourage your honour's to take a look at that paragraph thirty three dollars which for the reasons we just discussed i think lays out the proper timetables that this court should be looking at in the home schools to  could ask a later question assuming that the request by the n r d c was denied in an order by the discussing the purpose of the rich here is to ensure that the agency does not work this court's jurisdiction by withholding traditionally reviewable decisions we sincerely hope that if this court orders e p a to act will act and begin the begin initiate the cancellation process as we've laid out but if e p a were willing to deny our petition on those unlawful grounds we discussed a minute ago then we should be able to bring that unlawful order back to this court in america's decision exactly as your honor just described rather than waiting another year and a half for e p a to act at that point if they're willing to take on lawful action now let's come back here on the merits and argue over that let's not wait another year and a half for it to take them awful action that every day that passes is another day that kids are being exposed to this dangerous pesticide in their homes when they're petting and playing with their pets respectfully  er raises we would like to point out that e p a has indeed done substantial work on this issue there was a response to the petition and then the answer was brought to this court  for review that matter was remanded because he p a was in the process of completing an updated revised health assessment which was finished in two thousand and sixteen the at that point the agency had indeed told the court that they expected to get an answer out within ninety days of the completion of that study it was not able to do so because of the issue that came up regarding the question of whether the i'm just going to call it the pesticide would be released from the collars in form of liquid or powder the studies that were done demonstrated that the answer to that question would substantially affect the level of risk the more liquid involved the lower the level of risk now this is important particularly important in the context of a pesticide such as this that is regulated soley under fifty not under the federal food and drug order to decide whether action is required against a permit or against a permanent pesticide the agency has to determine whether there is and i'm reading from the statute an unreasonable risk to man or the environment taking into account the economics i'm car i'm sorry economic social environmental costs and benefits so with this you have a two part study was the last piece of information that e p a required to valuate the health assessment portion of that they didn't see determined in december that that study was complete and they are now moving forward more expeditiously than originally predicted the next step will be that the health and risk assessment for all of these pesticides products will be released in june or completed in june of two thousand and twenty one at that point you will have the agency's answers on both risks and the benefits for action and alleging that your own records indicate that there are risks to children from any remnants of this pesticide the products that contain this chemical rather than respond after a more that decade in the petition that was f well the agency has presented the court with the requested remedies under either of those prongs what the agency has explained is that you know st at this point the registration review and the particular product review are coming together fairly closely in time and there's about a six month difference if the court allows the agency to complete both at once as opposed to completing the enter response to an r t c which would then to lead the review of the overall class pesticides and obviously there are parties interested in that as well more over the  there are distinct benefits to allowing the agency to address pet products as part of the larger class st of all it doesn't able public to look at and understand the entire risk and benefit package for all of those secondly there is a possibility that during the ministre to proceed with respect to the other aggregate products issues or questions could be raised that would affect the agency's conclusions the pet products in specific which could require the agency to go back and reopen the pet product decisions and  there are just very practical advantages for example now instead of doing two studies one on the health risk assessment for the pet products and one for everything else the agency response separately we have given you the opinion of the head of the th for program but we have not gone beyond that to quantify it what we have done however is you know provided the court has petitioners noted with the alternate schedule that e p a could proceed under if the court determined that that was the remedy of choice and because the person studies and completed early e p a according to the declaration is adjusted would be finishing that process by that's that's true but it does require that the agency also consider benefits before it proceeds to any final concern  so it's just cool to that's certainly true but isn't there a point at which like enough is enough and play is too long and that  short steps that are required under fair for or evaluations that are required do not ultimately advance the ball because then you have weaknesses that can be challenged what would happen here is that if at the end of the risk assessment that's going to be finished in june e p a shit simming that we go ahead with the product separately to take additional time to consider whether mitigation is possible lowering the amount of the active ingredient in these past collars or other steps that the manufacturer may take that would resolve the issue and leave their registration either intact or require an amendment as opposed to a cancellation now so why is it why is it  those points couldn't be considered after an initial decision on the pet products so that so he tells a friend r d c if they disagreed with talking about something that as i understand it the agency's own findings from its earlier study said it was damaging to children are two parts of that your honor st e p a in its experience has found that sometimes negotiation with the registrant can lead to either one voluntary cancellation as bayer has already done with this particular pesticide or it can lead to an amendment that resolves the concern issue the reason that those practical approaches can be important is because the process for canceling a registration under fair for is very complicated even to do a public issuance of a proposed scientific advisory panel believe it sixty days notice to allow those bodies to make any comments if they so choose the scientific advisory panel has the option to call a hearing on thirty days notice at their discretion and if either of those entities do advance objections to e p a s proposal then the course is to publish everything in the federal register allow for comment and at that point e p a makes a decision whether to go ahead publicly with the proposed notice of cancellation or intent cancel or not and if they go ahead at that point the notice of cancellation because of this is issue and that in effect ultimately to the courts so while it may sound like trying to negotiate a solution with a for registrant is putting things off if you can avoid that very prolonged progress process it actually advances the ball considerably in the interests of everybody fall off the review schedule and it's just unclear from the record what action if any e p a was taking during that roughly two year period if that point was working with hearts to get them to wanted so at that point they had exhausted it was clear there was not could be any voluntary compliance so at that point they issued that that took roughly two years apparently yes  i see my time is almost up but we would ask the court st we don't believe and reason delay was on reasonable second we believe that the agency should be granted the timetables that request and rd if the court does apply require or i'm sorry supply remedy we ask that you carefully couch it in the terms of what is allowed under fair for in contrast to the cases such as panna which were providing the remedy for e p a to complete a rule making it was not the kind of detailed structure required by fair for both there are no questions i have no knew about when it told this court four years ago that it would be able to act on our petition within ninety days of finalizing risk assessment it knew of this liquid powder question it knew of their need for risk benefit balancing and its separate obligation regarding registration review but despite all of that it told this court that it intended to act within ninety days and this court relied on that representation when it granted the earlier voluntary remain and without retaining jurisdiction or imposing a deadline and now here we are again four years later your honor the counsel also talked about advantages that they see in doing the registration review together with responding to our petition those advantage it but it does not point to anything that it thinks could result from the registration review process that would in any way change or undermine its existing finding that these products are unsafe it said that it has already concluded that it's a study of that question it was the last remaining piece of data it said it needed and that is now done so if we look back at their the bullets in paragraph thirty three  declaration which is the timetable that they have set out if registration is rear view is put aside the st bullet is three months to determine whether the completed study is scientifically acceptable they completed that two months ago they tell us then they need three months to prepare revise risk assessment over two months of that have already passed so they now need less than thirty days according to their own timetable the last bullet is that if they find that there are potential risks of concern which given the final risk assessment found that there are risks of concern regardless of the liquid powder issue it will almost certainly find here they have now asked this court for six months to consider mission mitigation possibilities and converse with the registrar but again this e p a previously told this court it could act within ninety days of finalizing a risk assessment and it has not explained why it couldn't do the same here as judge gould was pointing out a lot of these things that they describ this bill that are things that they can do after initiating the cancellation process though the thing that they've described that they want to do before then is to have these conversations with the registrar but as chief judge cole was pointing out two and a half years passed with unsafe products every day that passes hundreds of thousands of children are being exposed to a dangerous pesticide in their homes that e p a concedes may be permanently damaging their brains the court should issue a writ of  for anything other than we're asking for them to respond within sixty days either by denying the petition or initiating the cancellation process under fire for a by sending a proposed notice of intent to cancel to the department of agriculture and th sphere for a science advisory panel we would encourage your honour's because for all the reasons we were just discussing and e p a has laid out how that process may drag on we would encourage your honour's as in community voice to also consider imposing a deadline on that cancellation process e p a can then if that cancellation process drags on e p a can always come back to this court and ask for an extension of that deadline but given the history here we are very concerned that absent some sort of if we were to grant relief to your climb to the petition rather than setting a deadline for a cancellation process the cancellation as opposed to just deny your that that's right your honor we do really want to stress that it's important to us that the court retain jurisdiction until there's a judicially rev decision community voice describes i believe the status report option is one option that would be available to the panel for the reasons we've discussed and that the years of delay that have passed we we would prefer that the court take the path that it took in community voice and impose a deadline on those proceedings which e p a can always come back and ask for an extension to if it's circumstances warrant but of course your honor if the panel felt more comfortable require status reports that would also be a remedy that would be available to you