On November 22, 2022, the US Court of Appeals for the D.C. Circuit granted a writ of mandamus against the EPA (Environmental Protection Agency). The Centers for Biological Diversity (CBD) and for Food Safety (CFS) brought the writ. The dispute arose eight years ago, when the EPA registered a new pesticide without meeting Endangered Species Act (ESA) requirements. The EPA failed to determine whether the pesticide would have an adverse effect on endangered species before approving its registration.
Endangered Species Act Compliance
The first step in ESA compliance is determining whether a proposed action “may affect” an endangered species or its habitat. If the action may affect any listed species or habitats, then a consultation is required. That consultation must be with either the National Marine Fisheries Service or the Fish and Wildlife Service (“The Services”). The purpose of this consultation is to consider what mitigation measures can be taken to avoid adverse effects.
EPA Regularly Violates ESA’s Effects Determination Requirement for Pesticides
The DC Circuit notes the EPA’s habit of approving pesticides without making this critical determination. The EPA faced at least twenty lawsuits covering over 1000 improperly registered pesticides. In 2014, EPA classified the pesticide at issue in this matter, cyantraniliprole, as a “Reduced Risk” pesticide. “Reduced Risk” pesticides are a special category that EPA determines has a lower risk to human health and non-target organisms. Despite the “Reduced Risk” label, EPA concluded cyantraniliprole “ha[s] the potential for direct adverse effects to…threatened/endangered” species.
EPA Fails to Consult the Services
That conclusion should have become a formal finding triggering a consultation with The Services. However, EPA registered the pesticide without a formal effects determination or a consult with The Services regarding mitigation measures. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requires all pesticides to be registered with the EPA. The DC Circuit has exclusive authority over challenges to EPA orders registering pesticides. In 2014, the petitioners, CBD/CFS filed a petition for review under FIFRA for the improper registration of cyantraniliprole. EPA admitted there was no effects determination or consult with the Services. Due to the admitted culpability, the DC Circuit needed only a single paragraph to rule against the EPA. The Court remanded and ordered EPA to conduct an effects determination and consultation before replacing with the registration order.
EPA Defied the DC Circuit
Five years passed and despite a direct order, EPA made no effects determination, nor did it consult the Services. CBD/CFS returned to Court seeking a writ of mandamus to compel EPA to perform its duties under the ESA. CBD/CFS argue that EPA is 8 years beyond the statutory deadline. CBD/CFS asked the Court to enforce a September 2023 deadline for the cyantraniliprole effects determination. EPA countered that it acted reasonably “by prioritizing development of a programmatic framework” for pesticide-related ESA determinations.
EPA Violated Clear Duty to Act
A writ of mandamus is “an extraordinary remedy, reserved…fo the most transparent violations of a clear duty to act.” The granting of writs of mandamus are infrequent, but the DC Circuit was quick to find it warranted here. EPA defied both the ESA and the Court’s order. EPA had a clear duty to conduct an effects determination and a parallel duty to obey the Court’s order. EPA argued that the writ was unnecessary since it had set an internal deadline of September 2023 for an effect determination. The Court found this unpersuasive as EPA admitted it may not meet that deadline and has no statutory obligation to do so. Additionally, under EPA’s current pesticide program, until 2030 it will not conduct effects determinations unless ordered to do so.
DC Circuit Grants Extraordinary Remedy and Will Monitor EPA
Ultimately, the Court found whether EPA acted in good faith in setting a September 2023 deadline is beside the point. A finding of bad faith is not necessary to conclude an unreasonable delay under the ESA. The Court ordered EPA to conduct the effects determination and provide updates every 60 days until the September 2023 deadline. If the EPA does not meet the September 2023 deadline, the Court indicated its willingness to vacate the registration order.
