Wednesday, April 22, 2020

NRDC v. US EPA (9th Cir. - April 22, 2020)

It takes a lot to get the Ninth Circuit to issue a writ of mandamus ordering an administrative agency to get off its duff.  It happens here.

The opening paragraph of the opinion by Judge Gould sets the tone for the rest of the thing:

"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."

The opinion is an example of litigation being good for one side until it's not.  There were prior efforts by the NRDC to speed up the EPA's response to its petition, but they generally came to nothing.  The judiciary didn't want to intervene and set potentially artificial deadlines.

But, at some point, enough is enough.  This opinion ends in exactly the opposite manner, with hard and fast deadlines.  "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 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."

That'll speed things up for sure.