## Facts

- Chlorpyrifos is an insecticide regulated under the FFDCA’s food-residue “tolerance” scheme and FIFRA’s pesticide registration regime.
- For years, EPA documented evidence linking chlorpyrifos to neurodevelopmental risks to children and restricted many residential uses.
- In 2007, PANNA and NRDC petitioned EPA under the FFDCA to revoke all chlorpyrifos tolerances (and cancel associated uses), citing evidence of harm to fetuses, infants, and children.
- In 2015, EPA proposed revoking all tolerances after concluding it could not find a “reasonable certainty of no harm” from aggregate exposure.
- EPA’s 2016 human-health risk assessment again concluded expected exposures exceeded safety thresholds, particularly for children.
- In March 2017, EPA denied the 2007 petition, stating the neurodevelopmental science was unresolved and deferring a final tolerance decision to a FIFRA registration review planned for completion in 2022.
- Petitioners filed timely administrative objections to the 2017 denial and sought an evidentiary hearing; EPA did not resolve the objections.
- Petitioners sought judicial review in the Ninth Circuit, challenging the 2017 denial order.

## Issues

1. Whether EPA’s 2017 order denying the tolerance-revocation petition was a “final order” and final agency action reviewable under the FFDCA despite unresolved administrative objections.
2. Whether EPA’s refusal to revoke chlorpyrifos tolerances violated the FFDCA’s requirement that tolerances be supported by a finding of “reasonable certainty that no harm will result” from aggregate exposure, especially for infants and children.
3. Whether EPA could postpone the FFDCA safety determination until a later FIFRA review based on asserted scientific uncertainty and planned future study.

## Decision

- The court held it had jurisdiction because EPA’s 2017 denial consummated EPA’s decisionmaking on the petition and carried legal consequences by leaving existing tolerances in place.
- The court rejected EPA’s nonfinality argument, reasoning that treating the order as nonfinal while objections remained pending would permit indefinite evasion of statutory obligations and judicial review.
- On the merits, the court held EPA’s decision to retain the tolerances was inconsistent with the FFDCA and arbitrary and capricious under the APA because EPA’s own risk assessments showed it could not make the required safety finding.
- The court granted the petition for review and ordered EPA to revoke all chlorpyrifos tolerances and to take appropriate action regarding associated registrations.

## Legal Principles

- An agency action is final when it marks the consummation of the agency’s decisionmaking process and determines rights or obligations or has legal consequences.
- The FFDCA requires EPA to ensure a “reasonable certainty that no harm will result” from aggregate pesticide exposure before allowing food tolerances, with particular protection for infants and children.
- EPA may not maintain tolerances when, on its own scientific record, it cannot make the FFDCA-required safety finding.
- Under the APA, agency action is arbitrary and capricious when the agency maintains a regulatory result contrary to its own findings without a reasoned explanation or supporting analysis.
- A court may order specific relief, rather than a general remand, where the record shows only one lawful outcome and delay would frustrate statutory requirements.

## Conclusion

The Ninth Circuit treated EPA’s 2017 denial of the petition to revoke chlorpyrifos tolerances as final and reviewable, held the denial unlawful because EPA’s own assessments indicated the FFDCA safety standard was not met, and ordered revocation of the tolerances with corresponding action on associated pesticide registrations.


League of United Latin Am. Citizens v. Wheeler, 899 F.3d 814 (9th Cir. 2018)