Headline: The Ninth Circuit Panel granted the writ of mandamus sought by environmental groups to compel the U.S. Environmental Protection Agency (EPA) to update lead-based paint and dust-lead standards when the EPA had failed to act after granting a rulemaking petition to the Petitioners eight years earlier.
Areas of Law: Administrative Law
(1) Whether the EPA had a duty to take final action on the environmental group’s 2009 rulemaking petition under the Toxic Substances Control Act or the Administrative Procedure Act.
(2) Whether the EPA’s failure to act on the 2009 rulemaking petition constitutes an unreasonable delay under the TRAC factors.
Brief Summary: In 1992 Congress enacted legislation seeking to eventually eliminate the risk of lead-based paint and dust-lead poisoning in children. Subsequently the EPA issued standards for acceptable levels of lead in 2001. Since 2001, scientific evidence has established that the EPA standards were not stringent enough to adequately protect children. In 2009, the Petitioners filed a rulemaking petition with the EPA to tighten the standards based on established scientific evidence. The EPA granted the rulemaking petition two months later.
After years of inaction on Petitioners rulemaking petition the Petitioners brought this action seeking a writ of mandamus, based on unreasonable delay, to compel the FDA to issue a rule updating the lead-based paint and dust-lead standards. Relying upon statutory construction, case precedent, and public policy – the panel granted the writ of mandamus, holding the EPA had a duty to act on the Petitioners rulemaking petition. Moreover, the panel held eight years of inaction constituted unreasonable delay.
Significance: Holding the EPA had a duty to act the panel engaged in statutory interpretation using legislative intent, supported by the public policy of protecting children from the dangers of lead-based paint and dust-lead. The panel had only applied the TRAC factors in three other cases when here, by applying and distinguishing these cases, it held that the EPA’s failure to act in eight years was an unreasonable delay.
Extended Summary: In 1992 Congress enacted the Paint Hazard Act seeking to eventually eliminate the risk of lead poisoning in children from structures built before lead-based paint was banned from consumer use in 1978. Congress empowered the EPA with sole authority over dust-lead and divided the authority over lead-based paint between the EPA and the Department of Housing and Urban Development (HUD). HUD was granted jurisdiction over public housing and the EPA retained jurisdiction over all other locations. Under the Act, each agency was tasked to establish an initial standard and to adjust the standard as needed in the future.
The EPA was given eighteen months to issue its initial standard, but the EPA did not finalize a standard until 2001. Over the years, scientific research has developed a deeper understanding of the risks associated with lead-based paint and dust-lead. A diverse group of organizations, including the Petitioners in this case, concluded the EPA lead-based paint and dust-lead standards were not stringent enough to provide the protection to children mandated by the Paint Hazard Act. The EPA has not disputed the scientific record, which shows the insufficiency of its present standard for achieving Congress’s purpose.
Acting on this concern in 2009 the Petitioners filed an administrative petition with the EPA requesting the EPA use its rulemaking authority to tighten the lead-based paint and dust-lead standards. Approximately two months later, the EPA granted Petitioner’s request; however, the EPA made no comment regarding the outcome or timing of further action.
In August 2016 the Petitioners filed this mandamus petition based upon unreasonable delay seeking to compel the EPA to issue new and more stringent standards in the near future. The EPA responded the mandamus was not necessary because a final rule could be issued in 2023. In this jurisdiction a mandamus petition based on unreasonable delay will be granted based upon the application of the TRAC factors.
Before reaching the issue of unreasonable delay the panel needed to establish that the EPA was under a duty to act. The panel held the EPA had a duty to act under both the Toxic Substances Control Act (“TSCA”) and the Administrative Procedure Act (“APA”). The panel concluded the intent of Congress in the 1992 Paint Hazard Act was to eliminate the risk of lead-based paint in all housing as quickly as possible and the TSCA made clear that this was an ongoing duty. The panel also held the EPA had a duty to act under APA because the APA requires a government agency to conclude matters within a reasonable time and the Petitioners 2009 rulemaking petition was such a matter.
In addition to finding a statutory duty for the EPA to act, the panel held the EPA was under a duty to act as a matter of public policy. The EPA argued the mandamus cannot be issued because the FDA fulfilled its duty when the rulemaking petition was granted in 2009. The panel rejected the EPA’s argument and the panel held the EPA must issue the rule as a matter of public policy. Otherwise, the EPA could avoid judicial review simply by granting a rulemaking petition and taking no further action.
The panel held the EPA had engaged in unreasonable delay by applying the six TRAC factors. The panel ruled that the most important factor is the “rule of reason.” The Panel went on to apply and distinguish the three other unreasonable delay mandamus cases and held the EPA’s failure to establish a reasonable timeline to promulgate rules under its duty constituted unreasonable delay.
The panel granted the Petitioners writ of mandamus and ordered the EPA to issue a proposed rule within ninety days of a final judgment and to issue the final rule within one year of the issuance of the proposed rule.
Dissent: For the dissent this case ended with a lack of duty on the part of the EPA to update the lead standards. Justice Smith believes the majority erred when they looked to the purpose and findings of Congress to conclude that the EPA was under a duty to update the initial 2001 standard. Alternatively, Justice Smith looked to the plain language of the statutes and concluded any future action by the EPA was purely discretionary under the TSCA because Congress indicated the regulation “may” be amended.
To read the full opinion, please visit:
Panel: Mary M. Schroeder and N. Randy Smith, Circuit Judges, and Lawrence L. Piersol, District Judge
Argument Date: June 12, 2017
Date of Issued Opinion: December 27, 2017
Docket Number: 16-72816
Decided: Granted writ of mandamus.
Case Alert Author: David T. Lawlor
Hannah Chang (argued), Eve C. Gartner, and Jonathan J. Smith, Earthjustice, New York, New York, for Petitioners.
Rochelle L. Russell (argued), Trial Attorney, Environment Defense Section; John C. Cruden, Assistant Attorney General, Environment & Natural Resources Division; United States Department of Justice, San Francisco, California; for Respondent.
Author of Opinion: Judge Mary M. Schroeder
Author of Dissent: Judge N.R. Smith
Case Alert Supervisor: Professor Glenn Koppel