A Community Voice v. U.S. Environmental Protection Agency
878 F.3d 779
| 9th Cir. | 2017Background
- Congress enacted the Residential Lead-Based Paint Hazard Reduction Act (1992) delegating EPA authority to set national dust-lead hazard standards and to amend standards as necessary.
- EPA issued dust-lead hazard standards in 2001 (40 µg/ft2 floors; 250 µg/ft2 sills) based on then-accepted science; later science shows lower levels are necessary to protect children.
- Petitioners filed an administrative petition in August 2009 asking EPA to lower dust and paint standards; EPA “granted” the petition in October 2009 but did not commit to a specific outcome or timetable.
- EPA conducted advisory-panel work, methodology reviews, and a housing-survey process through 2015 but took no final regulatory action; HUD later issued lower public-housing standards.
- Petitioners filed a mandamus action in 2016 seeking an order compelling EPA to issue a proposed rule and a final rule; EPA predicted a proposed rule by 2021 and final by 2023.
- The Ninth Circuit granted mandamus, finding EPA had a duty to act (under TSCA and APA), that delay was unreasonable under the TRAC factors, and ordered EPA to issue a proposed rule within 90 days and a final rule within one year after proposal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty under TSCA / Paint Hazard Act to amend standards | TSCA + Paint Hazard Act create an ongoing, mandatory duty to update standards in light of new science | Statutory text is discretionary; Congress set goals but did not mandate continuing rulemaking | Court: EPA has a duty to update standards given statutory framework and obvious need to protect children |
| Duty under APA to conclude a matter presented (petition) | EPA granted the petition, so under 5 U.S.C. § 555(b) it must conclude the rulemaking within a reasonable time | Granting petition to “begin appropriate proceedings” is not a commitment to rulemaking or timeline; EPA did act by initiating proceedings | Court: Granting the petition created a duty to conclude the matter within a reasonable time; EPA cannot avoid that duty by saying it only began proceedings |
| Unreasonable delay (TRAC factors) | Multi-year delay (8+ years) with serious risks to children and no concrete timetable is unreasonable | EPA has been working in good faith; rulemaking priorities and deliberation justify more time | Court: TRAC factors (rule of reason, threat to health, statutory objectives) favor finding unreasonable delay and grant of mandamus |
| Remedy / Timing of relief | Petitioners sought a proposed rule in 90 days and final rule in 6 months | EPA argued those deadlines would preclude deliberation; proposed much longer timeline (years) | Court ordered proposed rule within 90 days of decision becoming final and final rule within one year after proposal; retained jurisdiction; modifications only for new information |
Key Cases Cited
- Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (articulates six-factor TRAC test for unreasonable delay)
- Pesticide Action Network N. Am. v. EPA, 798 F.3d 809 (9th Cir. 2015) (granted mandamus for EPA delay; ordered timeline for rulemaking)
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (U.S. 2004) (limits §706(1) claims to discrete agency actions unlawfully withheld or unreasonably delayed)
- Pub. Citizen Health Research Grp. v. Auchter, 702 F.2d 1150 (D.C. Cir. 1983) (agency duty to conclude a matter where it has recognized need and assumed rulemaking responsibility)
- In re Int’l Chem. Workers Union, 958 F.2d 1144 (D.C. Cir. 1992) (six-year rulemaking delay found unreasonable; mandamus appropriate)
- In re Am. Rivers & Idaho Rivers United, 372 F.3d 413 (D.C. Cir. 2004) (six-year-plus delay characterized as egregious; reasonable agency action typically measured in weeks or months)
- Indep. Mining Co. v. Babbitt, 105 F.3d 502 (9th Cir. 1997) (adopts TRAC factors for mandamus review)