FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE PESTICIDE ACTION NETWORK

NORTH AMERICA; NATURAL

RESOURCES DEFENSE COUNCIL, INC.,

PESTICIDE ACTION NETWORK NORTH

AMERICA; NATURAL RESOURCES

DEFENSE COUNCIL, INC.,

Petitioners,

v.

U.S. ENVIRONMENTAL PROTECTION

AGENCY,

Respondent.

No. 14-72794

ORDER

Filed July 18, 2017

Before: Diarmuid F. O’Scannlain, A. Wallace Tashima,

and M. Margaret McKeown, Circuit Judges.
2 IN RE PESTICIDE ACTION NETWORK N. AM.

SUMMARY*

Mandamus

The panel denied the motion for further mandamus relief

filed byPesticide Action Network North America and Natural

Resources Defense Council, which alleged that the United

States Environmental Protection Agency (“EPA”)’s denial of

the Council’s administrative petition, seeking to revoke all

food tolerances and cancel all registration of a pesticide

called chlorpyifos, was inadequate.

In a published order on August 10, 2015, the panel

ordered EPA to respond to the Council’s administrative

petition. In a subsequent published order, the panel directed

EPA to take “final action” by March 31, 2017. The EPA

denied the Council’s petition on March 29, 2017.

The Council filed the present mandamus motion asserting

that EPA’s denial was inadequate because it contained no

new safety findings, and made no final determination as to

whether chlorpyifos food tolerances must be revoked.

The panel held that EPA had complied with the panel’s

previous orders by issuing a “final response to the petition.” 

The panel further held that the Council’s mandamus motion

was premature, and its substantive objections to the EPA’s

denial must first be made through the administrative process

mandated by statute.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
IN RE PESTICIDE ACTION NETWORK N. AM. 3

COUNSEL

Patti A. Goldman and Kristen Boyles, Earthjustice, Seattle,

Washington, for Petitioners.

Erica M. Zilioli, Environmental Defense Section; Jeffrey H.

Wood, Acting Assistant 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 Dow Agrosciences LLC.

ORDER

In 2007, Pesticide Action Network North America and

Natural Resources Defense Council (collectively, “PANNA”)

filed an administrative petition with the United States

Environmental Protection Agency (“EPA”). The petition

sought to revoke all food tolerances and cancel all registration

of a pesticide called chlorpyifos. In 2014, having grown

frustrated with EPA’s inertia, PANNA petitioned this court

for a writ of mandamus to force the agency to issue a

response, which PANNA acknowledged could include “a

final denial order . . . if that is how EPA decides to resolve

[it].”

On August 10, 2015, we ordered EPA to “issue either a

proposed or final revocation rule or a full and final response”

to PANNA’s administrative petition. In re Pesticide Action
4 IN RE PESTICIDE ACTION NETWORK N. AM.

Network N. Am., 798 F.3d 809, 814 (9th Cir. 2015) (emphasis

added). We later directed EPA to “take final action” on the

petition by March 31, 2017. In re Pesticide Action Network

N. Am., 840 F.3d 1014, 1015 (9th Cir. 2016).

EPA denied the petition on March 29, 2017. See 82 Fed.

Reg. 16,581 (Apr. 5, 2017). PANNA promptly filed a motion

for “further mandamus relief,” asserting that EPA’s denial

was inadequate because it contained “no new safety findings”

and no “final determination as to whether chlorpyifos food

tolerances must be revoked.” In short—and in its own

words—PANNA’s motion faulted EPA for “fail[ing] to act

on the substance of the petition.”

PANNA’s complaints arrive at our doorstep too soon. 

Although we previouslycondemnedEPA’s “egregious” delay

in responding to PANNA’s petition, the agency has now

complied with our orders by issuing a “final response to the

petition.” See In re Pesticide Action Network N. Am.,

798 F.3d at 811; see also 21 U.S.C. § 346a(d)(4)(A)(iii)

(providing that one valid agency response to a petition

challenging a pesticide’s tolerances is to “issue an order

denying the petition”).

These mandamus proceedings have addressed the timing,

not the substance, of EPA’s response. See In re Pesticide

Action Network N. Am., 798 F.3d at 813 (“The only question

before us is whether EPA’s delay in responding to the

administrative petition warrants the extraordinary remedy of

mandamus.”). Now that EPA has issued its denial,

substantive objections must first be made through the

administrative process mandated by statute. See 21 U.S.C.

§§ 346a(g)(2), (h)(1); 40 C.F.R. §§ 178.65, 180.30(b). 

PANNA implicitly recognizes as much by acknowledging
IN RE PESTICIDE ACTION NETWORK N. AM. 5

that “[f]iling objections and awaiting their resolution by the

EPA Administrator is a prerequisite to obtaining judicial

review” of EPA’s final response to the petition. Only at that

point may we consider the merits of EPA’s “final agency

action.” See 5 U.S.C. § 704. Although EPA dragged its heels

for nearly a decade, it has now done what we ordered it to do.

PANNA’s motion for further mandamus relief is

DENIED.