                                                                            FILED
                             NOT FOR PUBLICATION                             JUL 10 2013

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT

In re: PESTICIDE ACTION NETWORK                  No. 12-71125
NORTH AMERICA and NATURAL
RESOURCES DEFENSE COUNCIL,
INC.,
                                                 MEMORANDUM*

PESTICIDE ACTION NETWORK
NORTH AMERICA and NATURAL
RESOURCES DEFENSE COUNCIL,
INC.,

              Petitioners,

  v.

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,

              Respondent,

UNITED STATES OF AMERICA,

              Real Party in Interest.


                     Argued and Submitted February 4, 2013
                     Submission Withdrawn February 6, 2013
                          Re-submitted July 10, 2013
                              Seattle, Washington


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: FISHER, GOULD, and PAEZ, Circuit Judges.

       Pesticide Action Network North America and Natural Resources Defense

Council, Inc. (collectively “PANNA”) petition this court for a writ of mandamus

requiring the United States Environmental Protection Agency (“EPA”) to respond

within 60 days to its September 12, 2007 petition (“2007 Petition”) asking EPA to

ban the pesticide chlorpyrifos. Because this court would have exclusive

jurisdiction to review any final action taken by EPA in response to the 2007

Petition, we have jurisdiction to review a challenge to EPA’s failure to act. See In

re Cal. Power Exch. Corp., 245 F.3d 1110, 1119-20 (9th Cir. 2001). We deny the

petition.

                                       I.

       EPA has a statutory duty to respond to PANNA’s petition in one of three

ways, by issuing: a final regulation, a proposed regulation, or an order denying the

petition. 21 U.S.C. § 346a(d)(4)(A). When EPA fails to act on a petition, a

petitioner may seek judicial review under the Administrative Procedure Act to

compel EPA to act. See 5 U.S.C. § 706 (“The reviewing court shall– (1) compel

agency action unlawfully withheld or unreasonably delayed.”).




                                            -2-
      “While agencies cannot insulate their decisions from Congressionally

mandated judicial review simply by failing to take ‘final action,’ our authority to

issue mandamus relief from agency inaction is narrow indeed.” In re Cal. Power

Exch. Corp., 245 F.3d at 1124. “Nevertheless, when as here an agency has a

statutory duty to avoid ‘unreasonable delay,’ we must review the ongoing

proceedings to determine ‘whether the agency’s delay is so egregious as to warrant

mandamus.’” Sierra Club v. Thomas, 828 F.2d 783, 797 (D.C. Cir. 1987) (quoting

Telecomms. Research & Action Ctr. v. F.C.C., 750 F.2d 70, 78 (D.C. Cir. 1984)

(“TRAC”)).

                                        II.

      Applying the six-factor test set forth in TRAC for determining whether to

compel agency action on the basis of unreasonable delay, we deny the petition.

See In re Cal. Power Exch. Corp., 245 F.3d at 1124–25 (explicitly adopting the

D.C. Circuit’s six-factor test); Independence Min. Co., Inc. v. Babbitt, 105 F.3d

502, 507 (9th Cir. 1997).

      1. The time EPA has taken to consider the 2007 Petition is not unreasonable

in light of the complexity of the issue. “There is no per se rule as to how long is

too long to wait for agency action.” In re Core Commc’ns, Inc., 531 F.3d 849,




                                          -3-
855 (D.C. Cir. 2008) (quoting In re Am. Rivers & Idaho Rivers United, 372 F.3d

413, 419 (D.C. Cir. 2004)).

      PANNA argues that there is “no clear end to the delay in sight.” Yet EPA’s

subsequent response in this court has set forth a concrete timeline for final agency

action that would resolve the 2007 Petition by February 2014.

      Moreover, EPA has pointed to concrete steps that it has taken from 2007 to

the present to work toward resolving the complicated scientific questions posed by

the 2007 Petition, including convening four Scientific Advisory Panels, and issuing

a preliminary Human Health Risk Assessment, an updated evaluation of pesticide

spray drift risk, and a partial response to the 2007 Petition.

      2. The relevant statutes regulating chlorpyrifos—the Federal Food, Drug,

and Cosmetic Act (“FFDCA”), 21 U.S.C. § 346a, and the Federal Insecticide,

Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et. seq.—do not

require EPA to respond to the 2007 Petition on a particular timeline, and instead

require EPA to prioritize other petitions.

      As PANNA readily admits, FFDCA and FIFRA “do not provide a fixed

deadline for EPA to respond to a petition to revoke tolerances.” EPA is required

by FFDCA to prioritize certain other petitions and to expedite, within one year,

action on a certain subset of those petitions. 21 U.S.C. §§ 346a(d)(4)(B) & (C).


                                             -4-
Absent the 2007 Petition, FIFRA would not require EPA to evaluate chlorpyrifos

until 2022. 7 U.S.C. § 136a(g)(1)(A)(iii). These statutory provisions lend

significant support to EPA’s argument that the time it has taken to respond is

reasonable.

      3. & 5. PANNA forcefully argues that human health and welfare are at

stake and therefore delay may be particularly unreasonable. However, this factor is

not dispositive here. First, EPA found current chlorpyrifos exposures “safe” in

2006, and EPA does not presently believe that current levels of exposures result in

serious harm. Second, EPA, by its nature, regulates almost entirely in the realm of

human health and welfare. In such circumstances, we agree with the D.C. Circuit’s

observation that “whether the public health and welfare will benefit or suffer from

accelerating this particular rulemaking depends crucially upon the competing

priorities that consume EPA’s time, since any acceleration here may come at the

expense of delay of EPA action elsewhere.” Sierra Club, 828 F.2d at 798.

Therefore, neither the fact that EPA’s decision concerns human health nor the

scope of the potential harm justifies issuing a writ of mandamus at this time.

      4. The fourth TRAC factor requires that we “consider the effect of

expediting delayed action on agency activities of a higher or competing priority.”




                                         -5-
Independence Min. Co., Inc., 105 F.3d at 507 n.7. EPA argues that its proposed

time frame for resolving the petition is reasonable in light of its other statutory

obligations. We agree. Among other priorities, under FIFRA, EPA must make

registration decisions on pesticide applications on time frames running from three

months to two years; and EPA has received 1,500 such annual applications over

the last three years. This factor therefore weighs against granting the petition.

        6. The final TRAC factor does not relate to evidence that must affirmatively

be weighed, but rather merely notes that the court need not find any agency

impropriety in order to find an “unreasonable delay.” Independence Min. Co., Inc.,

105 F.3d at 507 n.7. Here, there is no allegation of impropriety, and thus this

factor deserves little mention.

                                         III.

        “In the final analysis, we weigh all the relevant factors and determine

whether they point in favor of court intervention.” Id. at 512. Balancing the

competing interests, we conclude that a writ of mandamus is not warranted at this

time.

        Although it is well established that we may retain jurisdiction over the 2007

Petition to ensure that EPA acts expediently, we decline to do so here. See TRAC,




                                           -6-
750 F.2d at 80. However, our denial of the petition is without prejudice to seeking

the same relief at a future date in the event EPA fails to act.

      PETITION DENIED.




                                           -7-
