Last week, the 9th Circuit Court of Appeals ordered EPA to revoke all tolerances for chlorpyrifos within 60 days. It's another fairly devastating indictment of the Trump administration.
First of all, the merits were pretty clear. Clear enough that the administration did not attempt to defend the case on the merits! The statutory language requires EPA to ban pesticides from use on food products unless:
There is a reasonable certainty that no harm will result from aggregate exposure to the pesticide.
After many years of delay in responding to a petition to ban chlorpyrifos (the Bush and Obama administrations were not exactly covered in glory in this case, either), the Obama administration did propose to ban chlorpyrifos. However, before the proposal was finalized, the Trump administration changed course and denied the petition. Why? Because:
The science addressing neurodevelopmental effects remains unresolved.
How the administration thought that it could justify denying the petition on the basis of scientific uncertainty, when the statute requires a ban unless the science shows with "certainty" that the product will not cause is just one of those sweet mysteries of how a bureaucracy responds to a force of nature such as Trump or Pruitt. One might have thought that at least one lawyer at EPA would have pointed out that the rationale for denying the petition was actually an admission that EPA had an obligation to grant the petition!
The outcome turned on whether the Court had jurisdiction to hear the case. EPA argued that there was an administrative process for appealing the denial of the petition, that petitioners had failed to exhaust that administrative remedy, and thus that the Court was deprived of jurisdiction.
Distinguishing between jurisdictional rules and claim-processing rules, the Court concluded – rightly, I think – that the failure to exhaust administrative remedies did not deprive the Court of jurisdiction. The Court's frustration with years of EPA delay certainly played a role in its conclusion:
Over the past decade and more, the EPA has stalled on banning chlorpyrifos, first by largely ignoring a petition properly filed pursuant to law seeking such a ban, then by temporizing in response to repeated orders by this Court to respond to the petition, and, finally, in its latest tactic, by denying outright our jurisdiction to review the ultimate denial of the petition, even while offering no defense on the merits. If Congress's statutory mandates are to mean anything, the time has come to put a stop to this patent evasion.
Justice delayed is justice denied.
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