In re Ctr. for Biological Diversity

53 F.4th 665

IN RE: CENTER FOR BIOLOGICAL DIVERSITY and Center for Food Safety, Petitioners

FMC Corporation and Syngenta Crop Protection, LLC, Intervenors

No. 21-1270

United States Court of Appeals, District of Columbia Circuit.

Argued September 15, 2022

Decided November 22, 2022

Stephanie M. Parent argued the cause for petitioners. With her on the petition for writ of mandamus and the reply was Jonathan C. Evans.

Kamela A. Caschette, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the opposition to the petition for writ of mandamus were Todd Kim, Assistant Attorney General, and Patrick R. Jacobi, Attorney.

Thomas A. Lorenzen argued the cause for intervenors. With him on the response to the petition for writ of mandamus were Kirsten L. Nathanson and Elizabeth B. Dawson. Amanda S. Berman entered an appearance.

Before: Millett and Rao, Circuit Judges, and Tatel, Senior Circuit Judge.

Tatel, Senior Circuit Judge:

Eight years ago, the Environmental Protection Agency registered a new pesticide without first determining, as required by the Endangered Species Act, whether it would have an adverse effect on endangered species. Then, five years ago, our court ordered EPA to fulfill that statutory obligation. Notwithstanding Congress's mandate and our order, EPA has failed to make the required determination. Now, the Center for Biological Diversity and the Center for Food Safety seek the only legal relief left that would force EPA to comply with the statute: a writ of mandamus. For the reasons set forth below, we shall grant the writ.

I.

Two statutes lie at the heart of this case: the Endangered Species Act (ESA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

The ESA, a broad decree to all executive agencies, requires them to consult with either the National Marine Fisheries Service or the Fish and Wildlife Service ("the Services") to "insure that any action authorized, funded, or carried out ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in [their habitats’] destruction." 16 U.S.C. § 1536(a)(2). If this seems a heavy burden for agencies to carry, that is by design: Congress "struck [the balance] in favor of affording endangered species the highest of priorities." Tennessee Valley Authority v. Hill , 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978).

An agency's first step toward ESA compliance is an effects determination, an initial review to determine whether a proposed action "may affect" an endangered species or its habitat. 50 C.F.R. § 402.14(a). If the agency finds that its proposed action will "not affect any listed species or critical habitat" in any way, then it need not consult the Services. Center for Biological Diversity v. Department of Interior , 563 F.3d 466, 475 (D.C. Cir. 2009). But if it finds that the proposed action may affect an endangered species, then it must consult. 50 C.F.R. §§ 402.14(a) ; 402.13(a). This required consultation is critical because it includes inter-agency consideration of what plausible mitigation measures could be implemented to avoid adverse effects on endangered and threatened species. See 16 U.S.C. § 1536(a)(2) ; 50 C.F.R. § 402.14. Consultation, then, provides a roadmap forward that balances accommodating agency priorities with maintaining ESA compliance. See 50 C.F.R. § 402.14(h)(2).

The second statute, FIFRA, regulates the sale and distribution of pesticides. No pesticide may be sold in the United States unless it is first registered with EPA. 7 U.S.C. § 136a(a). After receiving an application to register a pesticide, EPA must approve the application if it meets composition and labeling requirements and will "perform its intended function without unreasonable adverse effects on the environment" if used in accordance with widespread practices. 7 U.S.C. § 136a(c)(5). An EPA order registering a pesticide following notice-and-comment—like the one at issue in this case—may be challenged only in this court. Center for Biological Diversity v. EPA , 861 F.3d 174, 187 (D.C. Cir. 2017).

EPA has long had a fraught relationship with the ESA. It has made a habit of registering pesticides without making the required effects determination. As pesticides registered without effects determinations pile up, private parties regularly haul EPA into federal court to force ESA compliance. EPA has faced at least twenty lawsuits covering over 1,000 improperly registered pesticides. See Environmental Protection Agency, Balancing Wildlife Protection and Responsible Pesticide Use: How EPA's Pesticide Program Will Meet its Endangered Species Act Obligations 4 (2022). EPA's backlog even caught Congress's attention. In 2014, it directed EPA and the Services to file a report describing "approaches and actions taken" to streamline the FIFRA and ESA processes. Agricultural Act of 2014, Pub. L. No. 113-79, § 10013, 128 Stat. 649, 951. As a result, an interagency working group now regularly reports to the House Committee on Agriculture and the Senate Committee on Agriculture, Nutrition, and Forestry on its progress. See Agriculture Improvement Act of 2018 § 10115, 7 U.S.C. § 136a(c)(11).

The pesticide involved in this case, cyantraniliprole, provides protection from pests that feast on citrus trees and blueberry bushes. EPA classified cyantraniliprole as a "Reduced Risk" pesticide, a special category for pesticides it determines have a lower risk to human health and many non-target organisms. But in truth, cyantraniliprole poses a reduced risk to only some species. EPA's own risk assessment indicates that it is "slightly to very highly toxic to freshwater invertebrates; moderately to highly toxic to estuarine/marine invertebrates[;] highly toxic to benthic invertebrates; [and] highly to very highly toxic to terrestrial insects." Environmental Protection Agency, Environmental Fate and Ecological Risk Assessment for the Registration of the New Chemical Cyantraniliprole—Amended 57 (2013). Most significant for our purposes, EPA concluded that cyantraniliprole "ha[s] the potential for direct adverse effects to federally listed threatened/endangered" species. Id. at 5. Even so, EPA registered cyantraniliprole in 2014—without an effects determination and without consulting with the Services.

Cyantraniliprole's registration has come before our court before. In 2014, petitioners, the Center for Biological Diversity and the Center for Food Safety ("the Centers"), filed a petition for review under FIFRA to force EPA to make an effects determination and, if required, consult with the Services. Center for Biological Diversity , 861 F.3d 174. EPA willingly admitted that it "ha[d] not made an ‘effects’ determination or initiated consultation ... consistent with the ESA and its implementing regulations." Id. at 188. After satisfying itself that it had exclusive jurisdiction under FIFRA to review cyantraniliprole's registration and after EPA's frank admission of culpability, it took this court only a paragraph to find that EPA had violated the ESA.

Despite the faulty registration, the Centers chose not to seek vacatur, an understandable decision given that our court determined that vacating cyantraniliprole's registration would " ‘temporarily defeat ... the enhanced protection of the environmental values covered by’ " the registration and encourage the use of older, more toxic pesticides in cyantraniliprole's place. Id. at 188–89 (quoting North Carolina v. EPA , 550 F.3d 1176, 1178 (D.C. Cir. 2008) (per curiam)). The court remanded with instructions to EPA to replace the registration order with one "consistent with [its] opinion," id. at 189 —i.e. , a new registration order signed after an effects determination and any required consultation. In the ensuing five years, however, EPA made no progress toward completing cyantraniliprole's effects determination—that is, no progress until earlier this year. Only then did EPA schedule cyantraniliprole's effects determination, though it took no steps to complete it. Matuszko Decl. ¶ 25 & n.22.

Unsatisfied, the Centers have returned to court, seeking a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651, to require EPA to finally perform its ESA duties. In support, they argue that EPA is eight years past its statutory deadline, has failed to comply with our remand order, and is risking the health and habitats of endangered species. EPA responds that despite this near decade-long delay, it acted "reasonably by prioritizing development of a programmatic framework for addressing its pesticide program's extensive ESA obligations." EPA Br. 1.

Cyantraniliprole's registration owners, Syngenta Crop Protection, LLC and FMC Corporation, have intervened, arguing that vacating cyantraniliprole's registration would be "disruptive." Intervenors’ Br. 28. Fortunately for them, although the Centers originally requested that we order EPA to complete its effects determination within six months with automatic vacatur if it missed that deadline, counsel for the Centers made clear at oral argument that they were no longer seeking vacatur because EPA has now committed to completing the effects determination by September 2023. Matuszko Decl. ¶ 25 ("EPA has committed to the following schedule for making effects determinations: ... Sept. 2023[:] final effects determinations for cyantraniliprole."). The Centers now seek only a court order enforcing that deadline. Oral Arg. Rec. 4:14–19.

II.

Mandamus is an "extraordinary remedy, reserved only for the most transparent violations of a clear duty to act." In re Bluewater Network , 234 F.3d 1305, 1315 (D.C. Cir. 2000). A petitioner seeking mandamus must first establish that the agency has violated "a crystal-clear legal duty." In re National Nurses United , 47 F.4th 746, 752 (D.C. Cir. 2022). Absent a violation of a clear duty, this court is powerless to grant mandamus.

Violating a clear duty, however, is just the beginning of the mandamus...