Federal agencies regularly navigate competing decisions from the circuit courts. Infrequently, however, a circuit court finds an agency’s final action arbitrary and capricious after the agency obeyed the prior order of a sister circuit. In Red River Valley Sugarbeet Growers Association v. Regan, 85 F.4th 881 (8th Cir. 2023), the Eighth Circuit vacated the Environmental Protection Agency’s (EPA) chlorpyrifos regulations as arbitrary and capricious because EPA blindly followed the orders of the Ninth Circuit.
EPA’s rulemaking for chlorpyrifos—an insecticide—began with a 2007 petition from two environmental non-profits, urging the agency to revoke the existing tolerances using its authority to “modify or revoke a tolerance if the Administrator determines it is not safe.” 21 U.S.C. § 346a(b)(2)(A)(i). Between 2007 and 2016, EPA continually published assessments recognizing the health risks of consuming chlorpyrifos, but the agency did not act on the petition.
The petitioners sued EPA in the Ninth Circuit, prodding the agency to address their petition. After missing several deadlines, the Ninth Circuit instructed EPA to publish its final action by March 31, 2017. In re Pesticide Action Network North America, 840 F.3d 1014 (9th Cir. 2016). In April 2017, EPA denied the 2007 Petition, stating that “the science addressing neurodevelopment effects [of chlorpyrifos] remains unresolved” and requires further evaluation. Chlorpyrifos, 82 Fed. Reg. 16,581, 16,583 (Apr. 5, 2017). Subsequently, the Ninth Circuit found the denial arbitrary and capricious because the agency “could not determine to a ‘reasonable certainty’ that aggregate chlorpyrifos exposures under the current tolerances pose[d] no risk of harm” in light of its previous research. League of United Latin American Citizens v. Regan, 996 F.3d 673, 701 (9th Cir. 2021). The Ninth Circuit gave the agency 60 days to “revoke or modify chlorpyrifos tolerances.” It further instructed the EPA to act immediately “based upon the evidence” already in the record and without further factfinding. Id. at 703. In a subsequent final rule, EPA responded by revoking all chlorpyrifos tolerances. Tolerance Revocations, 86 Fed. Reg. 48,315 (Aug. 30, 2021).
Agricultural groups challenged the revocation in the Eighth Circuit. The Eighth Circuit held that EPA acted arbitrarily and capriciously because its “rushed” revocation and “ruled out” the option of modifying the tolerances. Red River Valley, 85 F.4th at 886-887. According to the court, EPA should have considered a partial ban because it suggested in 2020 that a partial ban may keep “aggregate exposure” within safe levels while still permitting eleven high-benefit agriculture uses.
Throughout its opinion, the Eighth Circuit acknowledged that the Ninth Circuit’s “short turnaround time complicated the EPA’s task.” Id. at 889. Nevertheless, the court held that “a short deadline is no excuse for zeroing in on a single solution to the exclusion of others.” Id. at 890. Although EPA could not determine how quickly exposure levels would decline if some tolerances remained in effect, the court stated that the agency had a statutory duty to “anticipate” how “aggregate exposure” would decline under a partial ban. “The agency might have needed to move more quickly than usual to confirm the safety findings and start the process of cancelling and adjusting registrations within the Ninth Circuit’s deadline. . . . But those are matters of policy and practicality, not statutory authority.” Id. at 888. The agency did not justify its revocation based on “new findings” or a “reevaluation of the evidence.” Instead, it “misunderst[ood] its duty to ‘anticipate’ the ‘aggregate exposure’ from its own proposal.” Id. at 891.
The saga of the chlorpyrifos regulations reveals the tensions between identifying the best policy, creating a detailed record, and complying with court orders. The Ninth Circuit prioritized the expeditious release of a final regulation “revoking or modifying” the tolerances. The Eighth Circuit prioritized a reasoned decision. EPA had an obligation to satisfy the demands of the Administrative Procedure Act while complying with the Ninth Circuit’s order. Yet the short deadline, limited administrative capacity, and an order not to engage in additional factfinding made it practically impossible for the EPA to satisfy the expectations of both the Ninth Circuit and the Eighth Circuit. “Anticipating” whether the partial ban would be sufficient to reduce “aggregate exposure” likely required additional time, facts, and analysis—all of which EPA lacked.
