It's a lawsuit brought by the Natural Resources Defense Council against the EPA. The NRDC wants the EPA to disallow the use of TCVP, which is a chemical originally developed from nerve warfare agents that's now used in pet collars to prevent fleas and ticks. The NRDC thinks that putting chemicals like this on pets that are petting by kids (who then stick their fingers in their own mouths) is a bad idea. So back in 2009, the NRDC asked the EPA -- pursuant to a statute -- to disallow the use of this chemical agent.
The statute says that the EPA has to respond to such petitions "within a reasonable time," but the EPA did anything but. It sat on its arse for five years, at which point the NRDC brought a petition of mandamus to get the EPA moving. I need not recount all the resulting delays and trips to the Ninth Circuit, but suffice it to say there was a lot going on, with the courts basically saying "Get off your butt" and the EPA responding by not exactly cracking the whip. Ultimately leading to the Ninth Circuit saying (in 2020): "Seriously, dude?! We're sick of this. Time for an order making you actually do what you're supposed to have done long ago." (Okay, the actual language was: "[T]he 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.").
At which point the EPA says, essentially, "Fine, you feel like making us decide? Here's our decision: The chemical seems basically fine with us. So there."
Which results in the present appeal. In which an already-miffed Ninth Circuit says: "Nope. Your (long belated) decision on the merits is as stupid as your delay in issuing it. Reversed. Decide again, and this time don't make moronic arguments. Oh, and get it back to us within 120 days. We're sick of your crap." (The panel's actual words: "At times, NRDC’s efforts to receive a reasoned response
from EPA have seemed Sisyphean as the agency consistently
delayed its decision. After NRDC had doggedly pursued this
matter for more than a dozen years, when EPA finally did
reach a decision under pressure of a mandamus order of our
court, NRDC was justified in expecting a rational,
supported, and reasoned response from EPA. EPA, though,
did not provide a well-reasoned or reasonable decision.
Instead, its stated reasons were cursory and often at odds
with EPA’s own prior assumptions and statements. Then, in
response to this lawsuit by NRDC, EPA has provided many
arguments in its briefing that were never given in the record
as the basis for the administrative decision. Because EPA’s
denial of NRDC’s petition is not supported by substantial
evidence, we VACATE EPA’s denial of NRDC’s petition and REMAND to EPA to issue a revised response to
NRDC’s petition within 120 days.")
When a group of federal appellate judges think a litigant is basically toying with (and/or ignoring) them, they tend not to like that. And they're quite capable of doing something about it.
I think you see a bit of that here.
Lesson of the day: Don't hack off federal judges.
