Pesticide Action Network North America & Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency

MEMORANDUM

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.”).

“While agencies cannot insulate their decisions from Congressionally mandated judicial review…