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JUDICIAL: Includes environmental law, ESA, FIFRA, pesticides

In In re Ctr. for Biological Diversity & Ctr. for Food Safety, No, 21-1270 (D.C. Cir. Nov. 22, 2022), the District Circuit Court of Appeals ordered the Environmental Protection Agency (“EPA”) to complete an Endangered Species Act (“ESA”) consultation for its registration of the pesticide cyantraniliprole under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). According to the ESA, any time a federal agency carries out an “agency action,” it must ensure that the action will not jeopardize the continued existence of any endangered or threated species or designated critical habitat. Federal agencies will engage in consultation with the Fish and Wildlife Service (“FWS”) to make sure that jeopardy is avoided. Registering a pesticide for use under FIFRA is an agency action that courts have recognized requires ESA consultation, however, in the past EPA has failed to undergo ESA consultation when registering pesticides.

The plaintiffs in this case filed suit against EPA over its registration of cyantraniliprole in 2014. At that time, the plaintiffs argued that EPA had violated the ESA by failing to undergo consultation with FWS when it registered cyantraniliprole. EPA admitted that it had not engaged in required consultation, and the matter was remanded back to EPA with orders from the court to come into ESA compliance. Eight years later, EPA still had not fulfilled its ESA obligations, prompting the plaintiffs to refile and ask the court to issue a writ of mandamus which would compel EPA to come into compliance with the ESA by a certain date. According to the court, a writ of mandamus is regarded as an “extraordinary remedy, reserved only for the most transparent violations of a clear duty to act” and should be administered only when there is no other way for the plaintiff to attain relief for their injury. Here, the court found that mandamus was appropriate because EPA had both a clear duty to act under the ESA, and a clear duty to comply with the court’s earlier order. Because EPA violated both of those duties, and there is no other way for the plaintiffs to receive relief, the court issued a writ of mandamus ordering EPA to undergo ESA consultation for its registration of cyantraniliprole.