UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

LEAGUE OF UNITED LATIN No. 19-71979 AMERICAN CITIZENS; PESTICIDE ACTION NETWORK NORTH AMERICA; EPA No. NATURAL RESOURCES DEFENSE EPA-HQ-OPP- COUNCIL; CALIFORNIA RURAL 2007-1005 LEGAL ASSISTANCE FOUNDATION; FARMWORKERS ASSOCIATION OF FLORIDA; FARMWORKER JUSTICE; LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT; LEARNING DISABILITIES ASSOCIATION OF AMERICA; NATIONAL HISPANIC MEDICAL ASSOCIATION; PINEROS Y CAMPESINOS UNIDOS DEL NOROESTE; UNITED FARM WORKERS; GREENLATINOS, Petitioners,

v. MICHAEL S. REGAN, Administrator, United States Environmental Protection Agency; U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondents. 2 LEAGUE OF UNITED LATIN AM. CITIZENS V. REGAN

STATE OF NEW YORK; STATE OF No. 19-71982 CALIFORNIA; STATE OF WASHINGTON; STATE OF EPA No. MARYLAND; STATE OF VERMONT; EPA-HQ-OPP- COMMONWEALTH OF 2007-1005 MASSACHUSETTS, Petitioners, OPINION DISTRICT OF COLUMBIA; STATE OF HAWAII; STATE OF OREGON, Intervenors,

v. MICHAEL S. REGAN, Administrator, United States Environmental Protection Agency; U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondents.

On Petition for Review of an Order of the Environmental Protection Agency

Argued and Submitted July 28, 2020 San Francisco, California

Filed April 29, 2021 LEAGUE OF UNITED LATIN AM. CITIZENS V. REGAN 3

Before: Jay S. Bybee and Jacqueline H. Nguyen, Circuit Judges, and Jed S. Rakoff, * District Judge.

Opinion by Judge Rakoff; Dissent by Judge Bybee

SUMMARY **

Environmental Protection Agency

The panel granted petitions for review, vacated the Environmental Protection Agency (“EPA”)’s 2017 Order and 2019 Order, and remanded with instructions to the EPA in cases challenging the EPA’s regulation of the pesticide chlorpyrifos.

The EPA has recognized that when pregnant mothers are exposed to chlorpyrifos residue, this likely harms infants in utero. This proceeding began in 2007, when two environmental non-profit organizations filed a petition asking the EPA to prohibit foods that contain residue of the insecticide chlorpyrifos. The EPA declined to take final action on the 2007 Petition for more than a decade. This Court issued multiple writs of mandamus requiring the EPA to move forward. In 2017, the EPA denied the 2007 Petition, and in 2019 denied all objections to that decision.

* The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 LEAGUE OF UNITED LATIN AM. CITIZENS V. REGAN

The panel held that the EPA had abdicated its statutory duty under the Federal Food, Drug and Cosmetic Act (“FFDCA”). The panel held that the EPA spent more than a decade assembling a record of chlorpyrifos’s ill effects and repeatedly determined, based on that record, that it could not conclude, to the statutorily required standard of reasonable certainty, that the present tolerances caused no harm. Rather than ban the pesticide or reduce the tolerances to levels that the EPA could find were reasonably certain to cause no harm, the EPA sought to evade through delay tactics its plain statutory duty. Because the FFDCA permitted no further delays, the panel ordered the EPA within 60 days after issuance of the mandate either to modify chlorpyrifos’s tolerances and concomitantly publish a finding that the modified tolerances are safe, including