Home » Case Summaries » 2017 » In re A Community Voice, 878 F.3d 779 (9th Cir. 2017).

 
 

In re A Community Voice, 878 F.3d 779 (9th Cir. 2017).

 

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Several environmental groups[1] brought a petition for writ of mandamus to compel the United States Environmental Protection Agency (EPA) to act upon a previously granted rulemaking petition concerning dust-lead hazards and lead-paint standards. The petition was brought under the Toxic Substances Control Act (TSCA),[2] the Residential Lead-Based Paint Hazard Reduction Act (Paint Hazard Act),[3] and the Administrative Procedure Act (APA).[4] The court reviewed final EPA rules for unreasonable delay under a six-factor balancing test.[5]

EPA, via the Paint Hazard Act, had been granted sole authority to establish a national dust-lead hazard standard, and had divided authority with the Department of Housing and Urban Development (HUD) to lower a congressionally established lead-based paint standard. Despite a directive to set dust-lead hazard standards within eighteen months of October 28, 1992, the rules were not established and finalized until 2001.

By 2009, the science behind lead paint hazards and dust-lead hazards had vastly improved, though the rules had not changed. In August 2009, four of the eight petitioners,[6] concerned that the standards established in 1992 were too lenient, filed an administrative petition with EPA asking for the agency to use its rulemaking authority to more adequately protect children from the hazards of lead by lowering the dust-lead hazard standards. In October, EPA sent a letter to the petitioners granting their request for rulemaking, but it did not commit to a specific outcome or date of implementation. Between 2009 and 2015, EPA took some action. EPA formed a Science Advisory Board Lead Review Panel (SAB Panel) and took comments from the SAB Panel on proposed methodology for dust-lead hazard standards in 2010. Between 2012 and 2015, EPA conducted a survey of housing to determine if lower lead clearance levels were feasible, but apparently did nothing after the conclusion of the survey. The petition for mandamus was filed nine months later in August 2016.

The court first determined that it had jurisdiction, noting that final EPA rules may be reviewed in the United States Court of Appeals for the D.C. Circuit or any United States Court of Appeals where the petitioner resides or has its principal place of business in the circuit.[7] The court also noted that any court which would have jurisdiction to review a final rule also has jurisdiction to determine the question of unreasonable delay.[8] The court found that, under the All Writs Act,[9] the court was allowed to issue any writs appropriate to aid the court’s jurisdiction, and therefore it had jurisdiction to consider the petition.

The court then turned to whether the agency had a duty to act. Petitioners argued that two statutory frameworks established a duty for EPA to act. First, they argued that the TSCA and its Paint Hazard Act amendments established a clear duty. Second, Petitioners argued that the APA placed a clear duty on EPA to take final action. EPA argued that it had already done what was required of it by beginning a proceeding. The court agreed that both statutes established a clear duty and that EPA had to come to a final decision, not merely begin a proceeding. It held that the instructions by Congress under the TSCA and the Paint Hazard Act to identify lead-based paint hazards[10] indicated that this was an ongoing duty. Furthermore, the court noted that because Congress established that the regulations “may be amended from time to time as necessary,” the duty was continuous.[11] The court also held that the APA established a duty to act because it required agencies to conclude matters presented to them within a reasonable time.[12] The court noted that “failing to find a duty would create a perverse incentive for the EPA”[13] because it would allow EPA to avoid judicial review by granting a petition and then taking no action.

Next, the court addressed whether there was an unreasonable delay justifying a writ of mandamus. It noted that the first factor of the six-factor test established in Telecomm. Research & Action Ctr. (TRAC)[14] was the most important, but not, by itself, determinative.[15] The court did not discuss each factor explicitly,[16] but held that the “clear balance of the TRAC factors favors issuance of the writ.”[17] It held the fact EPA delayed eight years favored Petitioners for the first factor, and that Congress’s desire to have the threat of lead poisoning eliminated quickly favored Petitioners for the second factor. The court found the clear threat to human welfare posed by lead, and EPA’s failure to identify any cases where a court has held that an eight-year delay was reasonable, supported granting the petition as well. Accordingly, the court granted the petition for the writ.

Finally, the court addressed the remedy. Petitioners asked the court to order EPA to issue proposed rules within ninety days and final rules within six months. EPA did not argue for a particular timeline but noted an intention to issue a proposed rule in four years, and a final rule in six years. The court first established that it had power and discretion to enforce a particular timeline. The court then held, in light of the severe risks to children of lead-poisoning under EPA’s insufficient standards and the fact that EPA had already taken eight years, that the timeline be more in line with Petitioner’s requests. It found that EPA must issue a proposed rule within ninety days of the court’s decision becoming final and promulgate a final rule within one year of the issuance of the proposed rule, and that both deadlines would only be modified if EPA presented new information showing that a modification was required. The court also retained jurisdiction in order to ensure compliance.

In sum, the Ninth Circuit granted the rulemaking petition based on unreasonable delay and ordered EPA to promulgate new standards under the TSCA and Paint Hazard Act.

Footnotes    (↵ returns to text)

  1. California Communities Against Toxics; Health 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, A Community Voice.
  2. 15 U.S.C. §§ 2601–2692 (2012).
  3. 42 U.S.C. §§ 4851­–4856 (2012).
  4. 5 U.S.C. §§ 551–559, 701–706, 1305, 3344, 4301, 5335, 5372, 7521 (2012).
  5. Telecomm. Research & Action Ctr. v. FCC (TRAC), 750 F.2d 70, 80 (D.C. Cir. 1984).
  6. Healthy Homes Collaborative, New Jersey Citizen Action, Sierra Club, and United Parents Against Lead National.
  7. 15 U.S.C. § 2618(a).
  8. Crown Simpson Pulp Co. v. Costle (Crown I), 599 F.2d 897, 1094–95 (9th Cir. 1979), rev’d in part, 445 U.S. 193, 196–97 (1980) (Crown II).
  9. 28 U.S.C. § 1651 (2012).
  10. 15 U.S.C. §§ 2681(10), 2683.
  11. Id. § 2687.
  12. APA, 5 U.S.C. § 555(b) (2012).
  13. In re A Community Voice, 878 F.3d 779, 785 (9th Cir. 2017).
  14. 750 F.2d 70 (D.C. Cir. 1984).
  15. See In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008).
  16. The court considered: 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. See TRAC, 750 F.2d at 80.
  17. In re A Community Voice, 878 F.3d at 787.
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