FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE NATURAL RESOURCES DEFENSE 

COUNCIL, INC.,

NATURAL RESOURCES DEFENSE 

COUNCIL, INC.,

Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION 

AGENCY; ANDREW WHEELER, in his 

capacity as Administrator of the 

United States Environmental 

Protection Agency,

Respondents.

No. 19-71324

OPINION

Petition for Writ of Mandamus

Argued and Submitted February 10, 2020

San Francisco, California

Filed April 22, 2020
2 IN RE NRDC

Before: R. Guy Cole, Jr.,* Ronald M. Gould,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Gould

SUMMARY**

Mandamus / Environmental Protection Agency

The panel granted a petition for a writ of mandamus, and 

ordered the U.S. Environmental Protection Agency (EPA) to 

respond within 90 days of the final date of this decision to 

the administrative petition of the Natural Resources Defense 

Council (NRDC) requesting that the EPA end the use of a 

dangerous pesticide, tetrachlorvinphos (TCVP), in 

household pet products.

Under the Federal Insecticide, Fungicide, and 

Rodenticide Act, the EPA has the task of determining which 

pesticides may be registered for sale and distribution. If the 

risks to the environment or human health are unreasonable, 

the EPA may initiate proceedings to cancel the pesticide’s 

registration, pursuant to 7 U.S.C. § 136d. Any interested 

person may petition the EPA to cancel a registered pesticide, 

and the EPA is required by the Administrative Procedure Act 

to resolve the petition “within a reasonable time.” 5 U.S.C 

§ 555(b).

* The Honorable R. Guy Cole, Jr., Chief Judge of the United States 

Court of Appeals for the Sixth Circuit, sitting by designation.

** 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 NRDC 3

In determining whether the EPA’s delay in responding 

to NRDC’s petition merited mandamus relief, the panel 

considered the TRAC factors established in Telecomms. 

Research and Action Ctr. (TRAC) v. FCC, 750 F.2d 70, 79–

80 (D.C. Cir. 1984). The panel held that the TRAC factors 

supported mandamus relief where, for more than a decade, 

the EPA frustrated NRDC’s ability to seek judicial review 

by withholding final agency action, while endangering the 

wellbeing of millions of children. The panel concluded that 

the EPA unreasonably and egregiously delayed the 

performance of its statutory duties on a critical matter of 

public health, and the circumstances warranted the 

extraordinary remedy of issuing a writ of mandamus.

If the EPA initiates cancellation proceedings, the panel 

ordered the EPA to file status reports with the court until 

registration of TCVP has been cancelled. If the EPA denies 

NRDC’s petition on the merits, then NRDC may appeal that 

final agency action under the standards of the Administrative 

Procedure and any other applicable law.

COUNSEL

Ian Fein (argued), Natural Resources Defense Council, San 

Francisco, California; Mae Wu, Aaron Colangelo, and Peter 

J. DeMarco, Natural Resources Defense Council, 

Washington, D.C.; for Petitioner.

Eileen T. McDonough (argued), Environmental Defense 

Section; Jonathan D. Brightbill, Principal Deputy Assistant 

Attorney General; Environment and Natural Resources 

Division, United States Department of Justice, Washington, 

D.C.; for Respondents.
4 IN RE NRDC

OPINION

GOULD, Circuit Judge:

For more than a decade, the Natural Resources Defense 

Council (NRDC) has waited in vain for the United States 

Environmental Protection Agency (EPA) to respond to its 

administrative petition requesting that the Agency end the 

use of a dangerous pesticide in household pet products. 

Repeatedly, the EPA has kicked the can down the road and 

betrayed its prior assurances of timely action, even as it has 

acknowledged that the pesticide poses widespread, serious 

risks to the neurodevelopmental health of children. Guided 

by our case law and the history of these proceedings, we hold 

that the EPA has unreasonably and egregiously delayed the 

performance of its statutory duties on this critical matter of 

public health and that the circumstances warrant the 

extraordinary remedy of issuing a writ of mandamus. We 

grant NRDC’s petition for a writ of mandamus.

I

The EPA’s stated “core mission” is to “protect[] human 

health and the environment.” Returning EPA to Its Core 

Mission, https://www.epa.gov/home/returning-epa-its-coremission. Under the Federal Insecticide, Fungicide, and 

Rodenticide Act (FIFRA), 7 U.S.C. §§ 136 et seq., the EPA 

has the task of determining which pesticides may be 

registered for sale and distribution in the American market, 

and the Agency may not approve registration of a pesticide 

that would cause “unreasonable adverse effects” to the 

environment or human health. 7 U.S.C. §§ 136(bb), 136a(a), 

136a(c)(5)(c). The EPA must periodically review 

registrations for compliance with that requirement by 

conducting risk assessments. Id. § 136a(g)(1)(A)(iii). If the 

risks to the environment or human health are unreasonable, 
IN RE NRDC 5

the EPA may initiate proceedings to cancel the pesticide’s 

registration, pursuant to 7 U.S.C. § 136d. Any interested 

person may petition the EPA to cancel a registered pesticide, 

40 C.F.R. § 154.10; Wash. Toxics Coal. v. EPA, 413 F.3d 

1024, 1033 (9th Cir. 2005), and the EPA is required by the 

Administrative Procedure Act (APA) to resolve the petition 

“within a reasonable time.” 5 U.S.C. § 555(b).

In April 2009, NRDC submitted an administrative 

petition (Administrative Petition) to cancel the registration 

of a pesticide called tetrachlorvinphos (TCVP) for use in 

household pet products.1 TCVP is a subset of 

organophosphate pesticides, which were developed from 

nerve warfare agents used during World War II. NRDC v. 

EPA, 658 F.3d 200, 205 (2d Cir. 2011). Organophosphates 

pose recognized dangers to the neurodevelopment of 

children, causing reduced cognitive capacity, delays in 

motor development, and behavioral problems. NRDC’s 

Administrative Petition followed on the heels of a 2008 peerreviewed study that found that human beings can absorb 

TCVP, at measurable, dangerous levels, through contact 

with pets being treated with TCVP products such as flea and 

tick shampoos, powders, and collars. M. Keith Davis et al., 

Assessing Intermittent Pesticide Exposure from Flea 

Control Collars Containing the Organophosphorus 

Insecticide Tetrachlorvinphos, 18 J. Exposure Sci. & Envtl. 

Epidemiology 564, 568–69 (2008). The study estimated that 

“millions of children who could be in direct contact” with 

TCVP through their pets are at risk. Id. at 564. Based in 

part on these findings, NRDC’s Administrative Petition 

sought cancellation of TCVP in pet products and contended 

that the EPA had “improperly permitted the continued use of 

1 The EPA has registered TCVP in household products, including 

certain pet products, since 2006.
6 IN RE NRDC

[TCVP] in pet collars, which has left toddlers . . . exposed to 

dangerous levels of a toxic pesticide.”

For nearly five years, NRDC received no response from 

the EPA to its Administrative Petition, and in February 2014, 

NRDC sought a writ of mandamus in the D.C. Circuit to 

compel the EPA to issue a response. In re Natural Resources 

Defense Council (NRDC), Case No. 14-1017, Doc. 1478697 

(D.C. Cir. Feb. 6, 2014). Seven months after NRDC filed 

suit, the EPA denied the Administrative Petition, citing a 

newly-completed risk assessment, which concluded that 

TCVP’s “risks . . . are below the Agency’s level of concern.” 

Because the EPA had issued a final response, the parties 

jointly dismissed the D.C. Circuit suit. In re NRDC, Case 

No. 14-1017, Doc. 1523854 (Nov. 21, 2014).

With the EPA having taken a judicially reviewable final 

action, NRDC brought suit in this court, challenging the 

EPA’s denial of the Administrative Petition as unlawful. 

Pet. for Review, NRDC v. EPA, Case No. 15-70025, ECF 

No. 1-2 (9th Cir. Jan. 5, 2015). Several months into the 

litigation, however, the EPA filed a motion for voluntary 

remand, asserting that it was completing a new risk 

assessment which might change its response to NRDC’s 

petition. Based on the EPA’s assertions that it was 

“committed to completing remand proceedings in a 

reasonable time frame”—and, specifically, its repeated 

representations that it “intend[ed] to issue a revised response 

to NRDC’s petition within 90 days after finalizing the 

[revised] risk assessment”—we remanded the case without a 

deadline in June 2016, over NRDC’s objections. Order, 

NRDC v. EPA, No. 15-70025, ECF No. 30 (June 9, 2016).

In December 2016, the EPA issued a revised final risk 

assessment, which now recognized that children could be 

exposed to TCVP through contact with pets using TCVP 
IN RE NRDC 7

products and that such exposure posed considerable risks to 

their health. Although the risk assessment recognized some 

“uncertainty as to whether the TCVP pet collars are liquid 

and/or dust formulated products,” it concluded that exposure 

“to pets treated with TCVP collars are estimated to be of 

concern regardless of the ratio of liquid/dust assumed.” The 

risk assessment noted that epidemiological studies have 

“consistently identified associations with 

neurodevelopmental outcomes associated with 

[organophosphate] exposure such as delays in mental 

development in infants (24–36 months), attention problems 

and autism spectrum disorder in early childhood, and 

intelligence decrements in school age children.” 

“Therefore,” the report continued, “there is a need to protect 

children from exposures that may cause these effects.” Upon 

release of the risk assessment, the EPA repeated its intention 

to “issue a final revised response to NRDC’s 2009 petition 

. . . within 90 days,” and issued a press release announcing 

that it had had “identified potential risks to people, including 

children, . . . which exceed the Agency’s level of concern.”

When 90 days had passed, however, the EPA did not 

issue its promised response. Instead, the EPA sent NRDC a 

cursory letter in March 2017, stating that it intended to 

review pet-care uses of TCVP and issue a proposed decision 

in several months, between July and September 2017, 

alongside its scheduled review of all other TCVP uses. But 

again, the EPA’s stated deadline came and passed without 

action, and, in fact, the EPA released a new schedule of 

registration reviews. The revised schedule made no 

reference to TCVP at all.

The EPA asserts that during this time it has been 

“endeavoring to secure additional data regarding the 

formulation of the releases from the pet collars [i.e., dust 
8 IN RE NRDC

versus liquid exposure] from Hartz Mountain Corp., the only 

remaining pet collar registrant, which will allow EPA to 

provide necessary refinement to the TCVP post-application 

risk assessment.” After several discussions toward the end 

of 2017, Hartz declined to voluntarily provide such data. 

The year of 2017 ended without a proposed decision or an 

updated schedule for review of TCVP, and so did 2018.

On May 29, 2019, NRDC filed the present petition for a 

writ of mandamus to compel the EPA to issue a final 

response to the 2009 Administrative Petition. Five days 

later, on June 3, 2019, the EPA, for the first time, took action 

to compel Hartz, pursuant to 7 U.S.C. § 136a(c)(2)(B)(i)–

(ii), to perform the torsion study that the Agency had 

requested in 2017.

“This court’s jurisdiction to consider this petition is 

dependent on our jurisdiction to review a final rule.” In re A 

Community Voice, 878 F.3d 779, 783 (9th Cir. 2017). 

Because we would have jurisdiction to review the EPA’s 

final decision resolving NRDC’s petition, see 7 U.S.C. 

§ 136n(b); United Farm Workers of Am. v. EPA, 592 F.3d 

1080, 1082–83 (9th Cir. 2010), we have jurisdiction here.

II

“Issuing a writ of mandamus directing a federal agency 

to act . . . is an extraordinary remedy justified only in 

exceptional circumstances,” but “[m]andamus is warranted 

in those rare instances when an agency’s delay is egregious.” 

In re Pesticide Action Network N. Am., 798 F.3d 809, 813 

(9th Cir. 2015) (citations and internal quotation marks 

omitted). We are faced with one of those instances.

On three occasions over the last five years, in 

circumstances materially similar to those presented here, we 
IN RE NRDC 9

have granted petitions for writs of mandamus to compel EPA 

action after concluding that the EPA had unreasonably 

delayed its response to serious dangers to human health. See 

League of United Latin Am. Citizens v. Wheeler (LULAC), 

922 F.3d 443, 445 (9th Cir. 2019) (en banc) (mem.) (granting 

a writ to compel the EPA to take action regarding another 

organophosphate pesticide, similar to TCVP, which had 

been linked to neurodevelopmental problems in children, 

based on “the history and chronology of this matter and the 

nature of the claims”); Community Voice, 878 F.3d at 787–

88 (granting writ to compel EPA action on lead paint, which 

was a threat to children’s health, after eight years of delay); 

Pesticide Action Network, 798 F.3d at 811–15 (granting writ 

in response to EPA’s more than eight-year delay regarding 

the same organophosphate at issue in the later LULAC case). 

In fact, LULAC and Pesticide Action Network each involved 

an organophosphate pesticide which was similar to the 

TCVP at issue here and had also been linked to 

neurodevelopmental problems in children. Because “[t]his 

case is similar in the length of delay, absence of a reasonable 

timetable, and harm to health,” Community Voice, 878 F.3d 

at 786, we have no trouble concluding that a writ of 

mandamus is also warranted here.

In determining that the delay has been sufficiently 

egregious to warrant the remedy of mandamus, we consider 

the six-factor standard—the so-called “TRAC factors”—

established in Telecomms. Research and Action Ctr. (TRAC) 

v. FCC, 750 F.2d 70, 79–80 (D.C. Cir. 1984). Pesticide 

Action Network, 798 F.3d at 813. Those factors are as 

follows:

(1) the time agencies take to make decisions 

must be governed by a rule of reason; 

(2) where Congress has provided a timetable 
10 IN RE NRDC

or other indication of the speed with which it 

expects the agency to proceed in the enabling 

statute, that statutory scheme may supply 

content for this rule of reason; (3) delays that 

might be reasonable in the sphere of 

economic regulation are less tolerable when 

human health and welfare are at stake; (4) the 

court should consider the effect of expediting 

delayed action on agency activities of a 

higher or competing priority; (5) the court 

should also take into account the nature and 

extent of the interests prejudiced by delay; 

and (6) the court need not find any 

impropriety lurking behind agency lassitude 

in order to hold that agency action is 

unreasonably delayed.

TRAC, 750 F.2d at 79–80 (citations and internal quotation 

marks omitted).

“The most important [TRAC factor] is the first factor, the 

‘rule of reason,’” Community Voice, 878 F.3d at 786 (citing 

In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 

2008)), under which we consider whether the time for 

agency action has been reasonable. Repeatedly, courts in 

this and other circuits have concluded that “a reasonable 

time for agency action is typically counted in weeks or 

months, not years.” Id. at 787 (quoting In re Am. Rivers & 

Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004)). 

On this issue, “the more developed law of the District of 

Columbia Circuit,” id. at 782, has held that a “six-year-plus 

delay is nothing less than egregious.” Rivers United, 

372 F.3d at 419; see also Core Commc’ns, 531 F.3d at 857 

(six year delay unreasonable); In re Bluewater Network, 

234 F.3d 1305, 1316 (D.C. Cir. 2000) (nine year delay 
IN RE NRDC 11

unreasonable); In re Int’l Chem. Workers Union, 958 F.2d 

1144, 1150 (D.C. Cir. 1992) (per curiam) (six year delay 

unreasonable).

Our own case law is no different. In Pesticide Action 

Network, we unanimously held that the rule of reason 

“tipped sharply in favor” of petitioners where, after eight 

years, the EPA had not issued a final response to an 

administrative petition requesting cancellation of the 

organophosphate pesticide chlorpyrifos. 798 F.3d at 814. 

Observing that the EPA had previously issued a “concrete 

timeline” and missed it, and that the EPA was now 

referencing additional uncertainties because of “complex 

regulatory proceedings,” we concluded that the EPA’s 

assurances of action were merely “a roadmap for further 

delay” and that the “EPA ha[d] stretched the ‘rule of reason’ 

beyond its limits.” Id. Similarly, in Community Voice, we

held that the EPA’s more than eight-year delay responding 

to an administrative petition requesting that the EPA issue a 

new rulemaking to “more adequately protect . . . children” 

from lead-based paint was egregious. 878 F.3d at 783, 787–

88.

Here, more than ten years have passed since NRDC first 

filed its Administrative Petition. Notably, it has repeatedly 

taken the action of NRDC or a court to prompt any 

movement by the EPA. Initially, the EPA gave NRDC no 

response to its Administrative Petition for five years and, 

later, the EPA only submitted its denial of that Petition seven 

months after NRDC sued for mandamus in the D.C. 

Circuit—effectively mooting that lawsuit. When NRDC 

subsequently brought suit against that final decision in this 

court, briefing went on for several months before the EPA 

sought and received voluntary remand, again effectively 

postponing judicial review. To obtain that voluntary 
12 IN RE NRDC

remand, the EPA expressly represented—to this court, to 

NRDC, and to the public—that it planned to issue a final 

decision within 90 days of completing a revised risk 

assessment. But when it completed that risk assessment in 

December 2016—slating an estimated final response for 

March 2017—the EPA never made such a response, and it 

has repeatedly delayed its review ever since. Now, in this 

litigation, the EPA has represented that it “anticipates” and 

“intends to issue its response” in September 2021, or 

possibly June 2021, alongside its other regularly scheduled 

registration reviews—more than twelve years after NRDC 

filed its Petition.

The EPA contends that it has accomplished “a 

reasonable amount of progress” during this time, pointing to 

its discussions with Hartz, the lone registrant of TCVP 

products, about conducting a “torsion study” on affected pet 

products, and also its subsequent action to compel Hartz to 

conduct that study. But in Community Voice, we found 

egregious delay even though the “EPA appears to have done 

some work.” 878 F.3d at 783. Perhaps more importantly, 

the EPA’s voluntary discussions with Hartz ended near the 

close of 2017, and yet the EPA did not act to compel Hartz’s 

compliance until a year and a half later, on June 3, 2019—

exactly five days after NRDC filed this suit. Furthermore, 

the requested “torsion study” itself is intended to determine 

the liquid-dust ratio of TCVP in pet collar products even 

though the EPA’s own 2016 risk assessment concluded that 

exposure to pets treated with TCVP collars is of concern 

“regardless of the ratio of liquid/dust assumed.” These 

actions do not represent “a reasonable amount of progress.” 

Instead, they show the same pattern of delayed action—

spurred only by outside prompting—that the EPA seems to 

have perfected throughout these proceedings.
IN RE NRDC 13

Whether we measure from April 2009—the time of 

NRDC’s initial Administrative Petition—or from March 

2017—the date that a final response should have been made 

according to the EPA’s own representations to this court—

the “EPA has stretched the ‘rule of reason’ beyond its 

limits.”2 Pesticide Action Network, 798 F.3d at 814. Its 

delay has not been one of weeks or months, but of years, 

Community Voice 878 F.3d at 787, and is all the more glaring 

because of its history of inaccurate representations and 

mooted lawsuits. And “[i]n light of the fact that [the 

Agency’s] timetables have suffered over the years from a 

persistent excess of optimism,” Pub. Citizen Health 

Research Grp. v. Brock, 823 F.2d 626, 629 (D.C. Cir. 1987), 

the “EPA’s ambiguous plan to possibly issue a proposed rule 

[more than twelve years] after the administrative petition is 

too little, too late,” Pesticide Action Network, 798 F.3d 

at 811. The rule of reason “tip[s] sharply in favor” of 

mandamus relief. Id. at 814.

The other TRAC factors also support mandamus relief. 

The second and sixth factors merit little discussion because 

Congress has supplied no specific timetable for this type of 

2 This case is readily distinguishable from the cases in which we 

have denied a petition for writ of mandamus because of lack of 

unreasonable delay. In In re Cal. Power Exch. Corp., 245 F.3d 1110 

(9th Cir. 2001), “petitioners sought to compel the Federal Energy 

Regulatory Commission to issue a final order regarding outstanding 

refund requests . . . a mere four months after the requests were made,” 

Community Voice, 878 F.3d at 787, a far cry from the years-long delay 

here. And in Indep. Mining Co. v. Babbitt, 105 F.3d 502, 505, 509 (9th 

Cir. 1997), we denied mandamus when petitioners sought relief after just 

two to three years of waiting for action on their patent claims, where 

Congress had expressly given the Department of the Interior five years 

to respond. In addition to implicating human health more than refund or 

patent claims do, this case involves a much longer time frame than either 

of the above cases and no contravening statutory timeline.
14 IN RE NRDC

EPA action except that it occur “within a reasonable time,” 

5 U.S.C. § 555(b),3 and because there is no dispute that “the 

court need not find any impropriety lurking behind agency 

lassitude in order to hold that agency action is unreasonably 

delayed,” TRAC, 750 F.2d at 79–80.

This leaves the third, fourth, and fifth factors: whether 

“human health and welfare are at stake,” “the effect of 

expediting delayed action on agency activities of a higher or 

competing priority,” and “the nature and extent of the 

interests prejudiced by delay.” Id. These factors strongly 

support NRDC’s petition for mandamus relief.

The EPA has acknowledged that TCVP in pet products 

poses a serious risk to human health and welfare—

specifically, to the neurodevelopment of children. The 

Agency argues, however—quoting from In re Pesticide 

Action Network, 532 Fed. App’x 649, 651 (9th Cir. 2013)—

that because the “EPA, by its nature, regulates almost 

entirely in the realm of human health and welfare,” any 

acceleration of action on NRDC’s petition will delay other 

agency actions that also impact human health. Essentially, 

the EPA is arguing that because the third factor (human 

health) will always be at stake in EPA cases, it merits less 

weight; and at the same time, the nature of the EPA’s work 

means that expediting this action will necessarily delay 

“agency activities of a higher or competing priority”—the 

fourth factor. Specifically, the EPA contends that “[t]he 

competing priorities here are the more than 300 pesticide 

3 The second factor provides that “where Congress has provided a 

timetable or other indication of the speed with which it expects the 

agency to proceed in the enabling statute, that statutory scheme may 

supply content for this rule of reason.” TRAC, 750 F.2d at 79–80 

(citations and internal quotation marks omitted).
IN RE NRDC 15

registration reviews that must be completed by EPA by 

October 2022 to meet the statutory deadline imposed by 

FIFRA,” and that “giving NRDC’s Petition undue 

precedence over the registration reviews [of other pesticides] 

may be detrimental to overall protection of human health 

from pesticides.” It therefore argues that TCVP pet products 

should be reviewed alongside all these other pesticides. The 

EPA’s arguments are misplaced.

First, it argues too much to say that the EPA gets a free 

pass on several of the TRAC factors simply because all of its 

activities to some extent touch on human health, such that 

prioritization of one goal will necessarily detract from 

competing priorities. Second, to support that tenuous 

position, the EPA quotes to a 2013 unpublished decision in 

Pesticide Action Network—the very case in which two years 

later we granted mandamus.

In the 2015 published opinion, we explained that 

circumstances had changed. Our prior unpublished decision 

had reasoned that “the urgency of the action was mitigated 

somewhat because EPA ‘regulates almost entirely in the 

realm of human health’ and had certified the safety of 

chlorpyrifos in 2006.” Pesticide Action Network, 798 F.3d 

at 814 (quoting 532 Fed. App’x at 651). But since the 2013 

decision, the EPA had “backtracked significantly from that 

pronouncement” of safety and had reported that the pesticide 

posed a significant threat to water supplies. Id. Thus, even 

though the EPA undoubtedly still had a number of 

competing regulatory concerns impacting human health, we 

concluded that the “EPA offers no acceptable justification 

for the considerable human health interests prejudiced by the 

delay.” Id. “In view of EPA’s own assessment of the 

dangers to human health posed by this pesticide, we [had] 

little difficulty concluding [EPA] should be compelled to act 
16 IN RE NRDC

quickly to resolve the administrative petition.” Id.; accord 

Community Voice, 878 F.3d at 787 (concluding that the third

factor favored granting the writ because “there is a clear 

threat to human welfare,” given that the “EPA itself has 

acknowledged that ‘[l]ead poisoning is the number one 

environmental health threat in the U.S. for children ages 6 

and younger’ and that the current standards are 

insufficient”).

So too here. The EPA acknowledged in its 2016 risk 

assessment that exposure “to pets treated with TCVP collars 

are estimated to be of concern regardless of” the liquid-dust 

ratio uncertainties that the EPA now claims require more 

study. It also recognized that “there is a need to protect 

children from exposures that may cause [the identified 

neurodevelopmental] effects.” Its January 2017 press 

release further confirmed that the risk assessment had 

“identified potential risks to people, including children, . . .

which exceed the Agency’s level of concern.” And 

elsewhere, the EPA has stated “that more stringent 

regulatory restrictions are necessary to protect public 

health.” Indeed, millions of young children potentially face 

significant risks to their neurodevelopment from further 

exposure. See M. Keith Davis, Assessing Intermittent 

Pesticide Exposure from Flea Control Collars, 18 J. 

Exposure Sci. & Envtl. Epidemiology at 568–69. In short, 

“[t]he children exposed [to TCVP] due to the failure of EPA 

to act are severely prejudiced by EPA’s delay, and the fifth 

factor thus favors issuance of the writ,” as does the third. 

Community Voice, 878 F.3d at 787. The stakes to human 

health and the interests prejudiced by delay are indisputable.

The EPA’s contention that it nonetheless cannot 

prioritize these known dangers to children’s health ahead of 

300 other regularly-scheduled pesticide registration 
IN RE NRDC 17

reviews—for which it has identified to this court no specific 

danger—is not an “acceptable justification for the 

considerable human health interests prejudiced by the 

delay.” Pesticide Action Network, 798 F.3d at 814. Nor do 

its appeals to administrative efficiency outweigh the 

acknowledged risks to children’s health. Its assertions of 

continued uncertainty regarding liquid-dust ratios also 

cannot justify further delay. Even if the EPA had not already 

expressly stated that TCVP in pet collars was of concern 

regardless of such ratios, the Agency cannot decline to act 

“because of the possibility of contradiction in the future by 

evidence unavailable at the time of action—a possibility that 

will always be present.” Chlorine Chemistry Council v. 

EPA, 206 F.3d 1286, 1290–91 (D.C. Cir. 2000). “[H]owever 

desirable it may be for EPA [to conduct further study] and 

even to revise its conclusion in the future, that is no reason 

for acting against its own science findings in the meantime.” 

Id. at 1290.

Finally, “[e]ven assuming that EPA has numerous 

competing priorities under the fourth factor and has acted in 

good faith under the sixth factor, the clear balance of the 

TRAC factors favors issuance of the writ.” Community 

Voice, 878 F.3d at 787. “[U]nlike Independence Mining or 

California Power Exchange”—the two opinions in this 

circuit to have denied mandamus for unreasonable delay, 

and which involved only economic interests4—here “there 

is a clear threat to human welfare.” Id. “In view of EPA’s 

own assessment of the dangers to human health posed by this 

pesticide, we have little difficulty concluding [EPA] should 

4 Independence Mining involved interests related to individuals’ 

patent claims, 105 F.3d at 505, 509, and California Power Exchange

involved refund requests, 245 F.3d at 1125. Both involved shorter time 

frames than are at issue here.
18 IN RE NRDC

be compelled to act quickly to resolve the administrative 

petition.” Pesticide Action Network, 798 F.3d at 814.

In sum, the EPA’s years-long delay on this critical matter 

of public health has been nothing short of egregious. For 

more than a decade, the EPA has frustrated NRDC’s ability 

to seek judicial review by withholding final agency action, 

all the while endangering the wellbeing of millions of 

children and ignoring its “core mission” of “protecting 

human health and the environment.” Returning EPA to Its 

Core Mission, https://www.epa.gov/home/returning-epa-itscore-mission. Its most recent assurances of expeditious 

action evoke its earlier broken promises to this court and 

provide a mere “roadmap for further delay.” Pesticide 

Action Network, 798 F.3d at 814. The “primary purpose of 

the writ in circumstances like these” is “to ensure that an 

agency does not thwart our jurisdiction by withholding a 

reviewable decision.” Rivers United, 372 F.3d at 419 (citing 

TRAC, 750 F.2d at 76). Here, the “EPA’s unreasonable 

delay in responding to the administrative petition has already 

been the subject of three non-frivolous lawsuits. There 

should not be a fourth.” Pesticide Action Network, 798 F.3d 

at 814–15. We grant NRDC’s petition for writ of 

mandamus.

III

We order the EPA to issue a full and final response to the 

Administrative Petition within 90 days of the date that this 

decision becomes final, either by denying the Petition or by 

initiating cancellation proceedings. If the EPA initiates 

cancellation proceedings, we order the EPA to file status 

reports with this court every two months, until registration 

of TCVP has been cancelled. We note, however, if the EPA 

begins cancellation proceedings, then we expect cancellation 

proceedings to conclude within one year of the date of this 
IN RE NRDC 19

decision, and any extension beyond that must be supported 

by a showing of good cause. By contrast, if the Agency 

denies NRDC’s Petition on the merits, then NRDC may 

appeal that final agency action under the standards of the 

APA and any other applicable law. This court shall retain 

jurisdiction until the EPA has taken a final action subject to 

judicial review.

The petition for writ of mandamus is GRANTED.