IN RE A COMMUNITY VOICE; California Communities Against Toxics; Healthy Homes Collaborative; New Jersey Citizen Action; New York City Coalition To End Lead Poisoning; Sierra Club; United Parents Against Lead National; We Act for Environmental Justice, Petitioners, v. U.S. Environmental Protection Agency, Respondent.
No. 16-72816
United States Court of Appeals, Ninth Circuit.
December 27, 2017
Argued and Submitted June 12, 2017, San Francisco, California
878 F.3d 779
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.
Before: MARY M. SCHROEDER and N. RANDY SMITH, Circuit Judges, and LAWRENCE L. PIERSOL,* District Judge.
Dissent by Judge N.R. Smith
OPINION
SCHROEDER, Circuit Judge:
INTRODUCTION
This case is about the hazards of lead paint in home environments that have been found by scientists to be more dangerous to childrens’ health than earlier supposed. It is an action in the form of an original petition for writ of mandamus to compel the Environmental Protection Agency (“EPA“) to act upon a rulemaking petition it granted eight years ago. The agency does not challenge the science supporting Petitioners’ concerns, but contends its only duty under the statute is to begin a rulemaking proceeding, and that it has no responsibility to make any decisions within a reasonable time or ever. The issues before us are essentially two: whether the agency has a duty to act and, if so, whether the delay has been unreasonable.
In determining these issues, we look to the relevant statutory provisions, the con
I. Background
In 1992, Congress set out a comprehensive scheme to regulate, and eventually eliminate, the risk of lead poisoning in children from pre-1978 structures, those built before lead-based paint was banned for consumer use. Residential Lead-Based Paint Hazard Reduction Act of 1992,
Congress delegated to the EPA sole authority to establish national actionable dust-lead hazard standards.
Though EPA was instructed by statute to issue its initial rules identifying dust-lead hazards within eighteen months of October 28, 1992, the rules were not finalized until 2001, when EPA identified the dust lead hazard for all “[c]hild-occupied facilities.” It did so in terms of micrograms per square foot, abbreviated as “µg/ft².” EPA established standards for floors and window sills as “40 µg/ft² on floors or 250 µg/ft² on interior window sills.”
Since January of 2001, scientific research has further advanced our understanding of the dangerousness of lead, yet the EPA‘s standards have not changed. In 2007, EPA‘s Clean Air Scientific Advisory Committee informed the agency that the dust-lead hazard standards were “insufficiently protective of children‘s health.” In 2012, the Center for Disease Control (“CDC“) acknowledged that there is no known safe blood lead level. CDC determined that 5 µg/dL, or half EPA‘s target level, should be sufficient to trigger a public health response, what they described as the “level of concern.” The American Academy of Pediatrics has said that the current dust-lead hazard standards allow some fifty percent of all children to have a blood lead level above the level of concern, and that EPA‘s current standards are obsolete. The lead-based paint standard set out originally by Congress also appears to be too high to provide a sufficient level of safety. EPA does not appear to dispute the factual record developed by Petitioners showing that, according to modern scientific understanding, neither the dust-lead hazard standard nor the lead-based paint standard are sufficient to protect children. Since the petition was filed, HUD has published guidelines lowering the acceptable dust-lead hazard standard in public housing for floors and window sills to the levels Petitioners asked for in this case.
By 2009 those worried about environmental hazards to childrens’ health were concerned that the standards were too lenient. Of the eight current Petitioners,
In the meantime, both publicly and privately, however, EPA appears to have done some work. In 2010, EPA formed a Science Advisory Board Lead Review Panel (“SAB Panel“) to provide advice on the process. EPA sent the SAB Panel a proposed methodology for dust-lead hazard standards in June 2010, and soon received comments noting that the approach was reasonable. In November of 2010, EPA sent the SAB Panel an updated proposed methodology which the SAB Panel again signed off on. In 2011, EPA performed a literature review which determined that technology was developed and feasible for detecting lower levels of dust lead. The EPA also coordinated with HUD to develop a survey of target housing to determine whether lower lead clearance levels were feasible. The survey was developed by June of 2012, authorized in May of 2014, and completed in October of 2015. The survey indicated that lower lead clearance levels were in fact feasible. EPA acknowledges it received the survey results, but that appears to have been the last action that EPA has taken.
Petitioners filed this mandamus petition about nine months later, in August of 2016, asking this court to hold that EPA has unreasonably delayed promulgation of the promised rule, and asking that this court compel EPA to issue a proposed and final rule in the near future. EPA responded that it has been working diligently and that mandamus is unnecessary. EPA estimated that a proposed rule might be ready to be issued in 2021, and that a final rule could come in 2023.
This court‘s jurisdiction to consider this petition is dependent on our jurisdiction to review a final rule. Final EPA rules may be reviewed in either the Court of Appeals for the D.C. Circuit, or any Court of Appeals for a circuit where any petitioner resides or has its principal place of business.
When deciding whether to grant a mandamus petition on the grounds of un
II. Duty
Petitioners point to two statutory frameworks they contend create a duty for the EPA to act. First, they argue there is a clear duty under the Toxic Substances Control Act (“TSCA“) and the amendments to it from the Paint Hazard Act. Second, they argue that the Administrative Procedure Act (“APA“) itself places a clear duty on EPA to take final action on their 2009 petition. We agree with Petitioners that a duty to act can be found in both.
In enacting the Paint Hazard Act, Congress was clear about what it wanted: to “prevent childhood lead poisoning” and “eliminate lead-based paint hazards in all housing as expeditiously as possible.”
This statutory framework clearly indicates that Congress did not want EPA to set initial standards and then walk away, but to engage in an ongoing process, accounting for new information, and to modify initial standards when necessary to further Congress‘s intent: to prevent childhood lead poisoning and eliminate lead-based paint hazards. Despite the dissent‘s attempt to recharacterize congressional intent, Congress did not simply state a goal when enacting the TSCA and the Paint Hazard Act; Congress established statutory standards that the EPA must enforce.
Moreover, even if we could conclude the EPA had no duty to act under the TSCA and the Paint Hazard Act, the EPA has a clear duty to act under the APA. The APA requires agencies to “conclude a matter presented to it” “within a reasonable time.”
EPA argues that it has already done everything this duty requires it to do by, in its words, “begin[ning] an appropriate proceeding.” In EPA‘s view, that is the only commitment to the Petitioners the agency made when it granted the August 2009 petition. The 2009 petition, however, did not petition EPA to begin a proceeding; it petitioned EPA to engage in rulemaking to lower the lead standards. The Petitioners also provided their view of what reasonable lead standards would be. EPA granted this petition for a rulemaking, though not promising a specific timeline or to specifically adopt the outcome offered by the Petitioners. Under these circumstances, EPA is under a clear duty to act.
Under the applicable law, the EPA has to reach some final decision. To “conclude [the] matter,” EPA must enter a final decision subject to judicial review, and they must do so “within a reasonable time.”
Support for the existence of a clear duty under these circumstances is found in analogous D.C. Circuit cases regarding the Occupational Safety and Health Administration (“OSHA“). The D.C. Circuit has held that when Congress creates an initial
These principles apply here. Under the TSCA and the Paint Hazard Act, Congress set EPA a task, authorized EPA to engage in rulemaking to accomplish that task, and set up a framework for EPA to amend initial rules and standards in light of new information. The new information is clear in this record: the current standards for dust-lead hazard and lead-based paint hazard are insufficient to accomplish Congress‘s goal, thereby creating an “obvious need, apparent to [the EPA.]” See Pub. Citizen Health Research Grp., 702 F.2d at 1154. Furthermore, because the EPA granted the Petitioners’ rulemaking petition, it came under a duty to conclude the rulemaking proceeding within a reasonable time. See id.; In re Int‘l Chem. Workers Union, 958 F.2d at 1150. The dissent refuses even to acknowledge the conflict its position creates with these principles.
We also note that failing to find a duty would create a perverse incentive for the EPA. In our court‘s most recent unreasonable delay case, we granted mandamus where the EPA had not responded to an administrative petition for rulemaking after eight years. See Pesticide Action Network N. Am. v. EPA, 798 F.3d 809 (9th Cir. 2015). The EPA distinguishes that case on the ground that here it has responded by granting this petition. Under
We thus conclude the EPA is under a duty stemming from the TSCA and the Paint Hazard Act to update lead-based paint and dust-lead hazard standards in light of the obvious need, and a duty under the APA to fully respond to Petitioners’ rulemaking petition. A writ of mandamus is appropriate if Petitioners have made a showing that the delay has been unreasonable. We turn to that question now.
III. Unreasonable Delay
In this circuit, in cases seeking mandamus, unreasonable delay is evaluated under the TRAC factors. See Indep. Mining Co., 105 F.3d at 507. There are six TRAC factors:
(1) the time agencies take to make decisions must be governed by a rule of reason; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.
750 F.2d at 80 (citations and internal quotation marks omitted). The most important is the first factor, the “rule of reason,” though it, like the others, is not itself determinative. See In re Core Commc‘ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008). We have to consider them all.
This court has discussed the TRAC factors in at least three unreasonable delay mandamus cases. Most recently, we granted the writ in Pesticide Action. There, the petitioners sought a rulemaking from the EPA that would revoke the approval of a particular pesticide, chlorpyrifos. Pesticide Action Network N. Am., 798 F.3d at 811. The EPA had not acted. Id. This court focused on the first and third TRAC factors, both of which favored granting the writ. Id. at 814. With regard to the third factor, we noted that “EPA‘s own assessment” was that the pesticide presented “dangers to human health.” Id. With regard to the rule of reason, we noted that EPA had been considering the petition for eight years, and EPA stated only that it intended to issue a proposed rule after yet another year had passed. Id. We held that after eight years and without a “‘concrete timeline’ for resolving the petition,” but only a “roadmap for further delay,” EPA had “stretched the ‘rule of reason’ beyond its limits.” Id. This case is similar in the length of delay, absence of a reasonable timetable, and harm to health.
EPA eventually filed its response to its petition by denying it, thus complying with our order and allowing petitioners access to administrative review, which may be followed by judicial review of the substance. See Pesticide Action Network N. Am., 863 F.3d at 1132-33.
Our case law thus supports our holding that the TRAC factors favor issuance of the writ in this case. As in Pesticide Action, EPA‘s delay here is into its eighth year, and EPA has not offered a “concrete timetable” for final action, but only speculative dates four and six years in the future when it might take final action. This is not a case like Independence Mining or California Power Exchange where the delay has been only months or a few years. Further, like Pesticide Action, and, unlike Independence Mining or California Power Exchange, there is a clear threat to human welfare; indeed EPA itself has acknowledged that “[l]ead poisoning is the number one environmental health threat in the U.S. for children ages 6 and younger” and that the current standards are insufficient. The children exposed to lead poisoning due to the failure of EPA to act are severely prejudiced by EPA‘s delay, and the fifth factor thus favors issuance of the writ. Finally, Congress has asserted that the threat of lead poisoning must be eliminated expeditiously, and thus the second TRAC factor also favors the issuance of the writ. Even assuming that EPA has numerous competing priorities under the fourth factor and has acted in good faith under the sixth factor, the clear balance of the TRAC factors favors issuance of the writ.
Cases from the D.C. Circuit buttress this conclusion. The D.C. Circuit has noted that “a reasonable time for agency action is typically counted in weeks or months, not years” and thus a “six-year-plus delay is nothing less than egregious.” In re Am. Rivers & Idaho Rivers United, 372 F.3d at 419. On the other hand, a “14-month time period” without more is not unreasonable. United Steelworkers of Am. v. Rubber Mfrs. Ass‘n, 783 F.2d 1117, 1120 (D.C. Cir. 1986). Other D.C. Circuit cases largely fall into this pattern. See, e.g., In re Int‘l Chem. Workers Union, 958 F.2d at 1150 (six year delay unreasonable for rulemaking); In re Core Commc‘ns Inc., 531 F.3d at 857 (same); In re Bluewater Network, 234 F.3d 1305, 1316 (D.C. Cir. 2000) (nine year delay unreasonable). Critically, EPA fails to identify a single case where a court has upheld an eight year delay as reasonable, let alone a fourteen year delay, if we take into account the six more years EPA asserts it needs to take action.
IV. Remedy
Having determined that Petitioners are entitled to mandamus, we now turn to the question of the contents of the writ. Petitioners ask that we order EPA to issue a proposed rule within ninety days and a final rule within six months. EPA does not provide an alternative timeline, other than its vague intention to issue a proposed rule in four years and a final rule in six, a timeline we hold to be unreasonable.
In Pesticide Action, we ordered the EPA to issue a proposed rule in ninety days, and to provide a timeline for a final rule at that time. 798 F.3d at 815. We also look to the D.C. Circuit, which has more frequently dealt with unreasonably delayed rulemakings. In International Chemical Workers Union, the D.C. Circuit granted mandamus on March 20, 1992, and ordered OSHA to submit a final rule by August 31, 1992. 958 F.2d at 1150. In Public Citizen Health Research Group, the D.C. Circuit ordered OSHA to issue a notice of proposed rulemaking within thirty days and to expedite the final rule on a priority basis, earlier than OSHA‘s estimate of one and a half years. 702 F.2d at 1159. Using an alternative device, in In re United Mine Workers of America International Union, 190 F.3d 545, 556 (D.C. Cir. 1999), the D.C. Circuit granted mandamus and ordered the Mine Safety and Health Administration to issue periodic status reports on its progress toward promulgation of a final rule. All these cases make it clear that when there has been an unreasonable delay in rulemaking, courts have power and discretion to enforce compliance within some form of timeline.
EPA does not dispute this court‘s authority, but argues that the timeline sought by the Petitioners, ninety days for a proposed rule and six months for a final rule, would force EPA to act without due deliberation.
We are mindful of the need for EPA to issue a well-conceived rule, and not merely a rule, and that new issues may arise during a notice and comment period that demand further study; we are also mindful that we lack expertise in fashioning timetables for rulemaking. We must observe, however, that EPA has already taken eight years, wants to delay at least six more, and has disavowed any interest in working with Petitioners to develop an appropriate timeline through mediation. We are also mindful of the severe risks to children of lead-poisoning under EPA‘s admittedly insufficient standards. These circumstances are reminiscent of the circumstances we confronted in Pesticide Action, and thus we issue a timeline to the EPA materially similar to the one issued there with respect to the promulgation of a proposed rule and permitting of the possibility of timeline modification.
Accordingly, we order (1) that EPA issue a proposed rule within ninety days of the date that this decision becomes final; (2) that EPA promulgate the final rule within one year after the promulgation of the proposed rule; and (3) that the deadlines for both the proposed rule and the final rule will only be modified if EPA presents new information showing modification is required. This court retains jurisdiction for purposes of ensuring compliance until EPA issues a final order subject to judicial review.
The petition for writ of mandamus is GRANTED.
N.R. SMITH, Circuit Judge, dissenting:
Because neither the Toxic Substances Control Act and the amendments in the Paint Hazard Act (collectively referred to
I.
A writ of mandamus is a “drastic [remedy], to be invoked only in extraordinary situations.” Kerr v. U. S. Dist. Court for N. Dist. of California, 426 U.S. 394, 402 (1976). “To show entitlement to mandamus, plaintiffs must demonstrate (1) a clear and indisputable right to relief, (2) that the government agency or official is violating a clear duty to act, and (3) that no adequate alternative remedy exists.” Am. Hosp. Ass‘n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016). “These three threshold requirements are jurisdictional; unless all are met, a court must dismiss the case for lack of jurisdiction.” Id. Here, Plaintiffs failed to satisfy their burden of proving that the EPA had a clear duty to act under the TSCA or the APA, thus entitling Plaintiffs to clear and indisputable relief. Therefore, we lack jurisdiction to grant the writ. Let me explain why granting this drastic remedy was in error.
A.
The majority first finds a clear duty to act in the TSCA. Let us examine that premise. In enacting the TSCA, Congress was clear about its purpose: “to develop a national strategy to build the infrastructure necessary to eliminate lead-based paint hazards in all housing as expeditiously as possible“; and “to encourage effective action to prevent childhood lead poisoning by establishing a workable framework for lead-based paint hazard evaluation and reduction and by ending the current confusion over reasonable standards of care.”
Thus, in order to issue a writ of mandamus, we must examine the language of the TSCA to determine whether there is a Congressional mandate for the EPA to act. The language of the TSCA evidences that Congress mandated that the EPA “promulgate regulations which shall identify . . . lead-based paint hazards, lead-contaminated dust, and lead-contaminated soil,” “[w]ithin 18 months after October 28, 1992.”
Despite the majority‘s reliance on “findings” and “purposes,” Congress did not mandate an ongoing duty with regard to promulgating regulations in order to reach the stated purpose of “eliminat[ing] lead-based paint hazards,”
Although it is tempting to interpret Congress‘s use of the term “may” to create a duty in light of Congress‘s broad “purposes” and “findings,” we should use caution in relying on Congress‘s “admirable goal” of eliminating lead poisoning “to alter the apparent meaning of a specific provision.” United States v. Plaza Health Labs., Inc., 3 F.3d 643, 647 (2d Cir. 1993) (quoting Nat‘l Wildlife Fed‘n, 693 F.2d at 178). “It is not for us to rewrite the statute so that it covers . . . what we think is necessary to achieve what we think Congress really intended.” Lewis v. City of Chicago, 560 U.S. 205, 215 (2010). Thus, without a congressional mandate in the TSCA, we have no authority to mandate that the EPA act to meet Congress‘s goals (even if we believe it is in the best interest of society for the EPA to act).2
B.
Because Petitioners failed to establish they are entitled to mandamus relief under the TSCA, they otherwise seek to establish jurisdiction under the APA. See Norton v. S. Utah Wilderness All., 542 U.S. 55, 63-65 (2004). As the majority notes, the APA requires agencies to “proceed to conclude a matter presented to it” “within a reasonable time.”
It appears that everyone agrees that the EPA fulfilled its obligation to address Petitioners’ petition under
In this case, Petitioners presented a petition to the EPA requesting that it begin rulemaking to (1) lower the dust-lead hazard standards, and (2) modify the definition of lead-based paint. The EPA responded to the petition. The parties agree that the EPA granted the request. However, the parties disagree what the grant provided. The language noted that the EPA would “begin an appropriate proceeding.” The EPA also clarified that it was “not committing to a specific rulemaking outcome—including the specific level of the lead dust hazard standard—or to a certain date for promulgation of a final rule.” With regard to the definition of lead-based paint, the EPA also noted that it would “initiate appropriate proceedings,” but clarified that it would work with the Secretary of Housing and Urban Development (“HUD“) to address the second part of the petition.4
After the response, the EPA did not delay in beginning “appropriate proceedings.” To the contrary, the EPA engaged in research with regard to this issue, which ended just prior to this petition being filed. Hence, the EPA did not fail or delay in proceeding as it stated it would.
Nevertheless, the majority interprets the EPA‘s grant of the petition as an agreement by the EPA to engage in rulemaking (even though the EPA never stated that it was going to proceed in this manner). Reading the language of the order, it is not clear what the EPA meant by agreeing to “initiate appropriate proceedings“; the EPA‘s “granting” of the petition requesting rulemaking is arguably misleading, because the language in the grant did not commit the EPA to ever engage in rulemaking. However, under the APA, we cannot place a greater duty upon the EPA than it agreed to do. See Norton, 542 U.S. at 64 (“[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.“). Here, the EPA granted the petition with specific limitations, which did not necessarily include engaging in rulemaking. The EPA cannot be faulted by its
Rather than reading the response and interpreting it, Petitioners and the majority criticize the EPA‘s response. They assert that not finding a duty (under the APA) for the EPA to engage in rulemaking creates a perverse incentive for the EPA to grant petitions and then not act in an effort to avoid judicial review. However, if the EPA does not act as it suggests it will, then a petitioner can request judicial review.5 Reading the EPA response, it is clear that the majority‘s characterization (of what happened here) lacks basis. Mandamus in this case is not appropriate, because the EPA did act. See Gardner v. BLM, 638 F.3d 1217, 1221-22 (9th Cir. 2011) (noting that “in the absence of a specific legislative or regulatory command,” courts lack authority to require agency action). It responded to the petition; it engaged in proceedings related to lead paint and lead dust. Although the EPA did not engage in rulemaking as Petitioners requested, it was not required to do so. The EPA set forth its limitations and (thus far) has chosen not to engage in any further proceedings. We cannot and should not find a duty to act beyond what the agency stated it would do. Although we may not like the actions of the agency, our jurisdiction is limited to determine whether the agency assumed a duty, and, if so, the scope of that duty. Here, the EPA never assumed a duty to engage in a rulemaking; rather it only assumed a duty to “begin an appropriate proceeding,” which it did.6
C.
Lastly, the majority turns to case law, Public Citizen Health Research Group v. Auchter, 702 F.2d 1150 (D.C. Cir. 1983) (per curiam), and In re International Chemical Workers Union, 958 F.2d 1144 (D.C. Cir. 1992) (per curiam), for support. The majority asserts these cases stand for the proposition that, if Congress grants an agency the authority to amend a standard, the agency is under “a duty to act where there is an ‘obvious need, apparent to [the agency].‘” Maj. Op. 785. One only has to read these cases to determine that the
The EPA‘s refusal to act in light of the new information it obtained (even if frustrating) is within its authority set forth by Congress. Although the majority characterizes this result as a “conflict,” no conflict actually exists here. The EPA had no duty to act under the TSCA, and the EPA concluded the duties it assumed in response to the rulemaking request. The fact that the EPA may now have knowledge that the current standards are insufficient to accomplish Congress‘s goals does not require it to act under either scheme the majority asserts here.7 Congress chose to leave it in the agency‘s discretion on when or whether to amend regulations. Although I recognize that we may believe the EPA should act under these circumstances,8 “we are not free to rewrite the statute that Congress has enacted.” Dodd v. United States, 545 U.S. 353, 359 (2005). The statutory language is clear and unambiguous, and, “[w]hen the statute‘s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” Id. (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6 (2000)).
Therefore, I respectfully dissent.