A Community Voice v. Usepa

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE A COMMUNITY VOICE; No. 16-72816
CALIFORNIA COMMUNITIES AGAINST
TOXICS; HEALTHY HOMES
COLLABORATIVE; NEW JERSEY OPINION
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; 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.
2 IN RE A COMMUNITY VOICE
Appeal from the United States District Court
for the Northern District of California
Argued and Submitted June 12, 2017
San Francisco, California
Filed December 27, 2017
Before: Mary M. Schroeder and N. Randy Smith, Circuit
Judges, and Lawrence L. Piersol,* District Judge.
Opinion by Judge Schroeder;
Dissent by Judge N.R. Smith
*
The Honorable Lawrence L. Piersol, United States District Judge for
the District of South Dakota, sitting by designation.
IN RE A COMMUNITY VOICE 3
SUMMARY**
Mandamus / Environmental Protection Agency
The panel granted a petition for writ of mandamus
brought by environmental groups seeking to compel the
United States Environmental Protection Act (“EPA”) to act
upon a rulemaking petition it granted years ago concerning
dust-lead hazard and lead-paint standards.
The panel held that it had jurisdiction to consider the
mandamus petition because three of the petitioners were
California residents, and they challenged a final EPA rule.
The panel held that the EPA was under a duty stemming
from the Toxic Substances Control Act and the Residential
Lead-Based Pain Hazard Reduction Act of 1992 to update
lead-based paint and dust-lead hazard standards in light of the
obvious need, and a duty under the Administrative Procedure
Act to fully respond to petitioners’ rulemaking petition.
The panel held that in cases seeking mandamus, the issue
of whether the agency unreasonably delayed is evaluated
under the factors outlined in Telecomms. Research & Action
Ctr. v. FCC, 750 F.2d 70, 75 (D.C. Cir. 1984) (“TRAC”). The
panel held that the clear balance of the TRAC factors favored
issuance of the writ. The panel further held that D.C. Circuit
cases buttressed this conclusion. The panel, accordingly,
granted the petition for a writ of mandamus.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 IN RE A COMMUNITY VOICE
The panel turned to the question of the contents of the
writ. The panel ordered (1) that EPA issue a proposed rule
within ninety days of the date that this decision became 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 final rule would only
be modified if EPA presented new information showing
modification was required.
The court retained jurisdiction for purposes of ensuring
compliance until EPA issued a final order subject to judicial
review.
Judge N. R. Smith dissented because he would hold that
neither the Toxic Substances Control Act and the
amendments in the Paint Hazard Act nor the Administrative
Procedures Act mandated the EPA to act, and the majority
therefore improperly granted a writ of mandamus.
COUNSEL
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.
IN RE A COMMUNITY VOICE 5
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 controlling law of this circuit and the
more developed law of the District of Columbia Circuit. All
strongly support granting the petition.
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, Pub L. 102-550,
106 Stat. 3672 (“Paint Hazard Act”). As part of this program,
6 IN RE A COMMUNITY VOICE
Congress identified two types of lead risks that needed to be
regulated, lead-based paint itself, and dust-lead hazards.
Congress delegated to the EPA sole authority to establish
national actionable dust-lead hazard standards. 15 U.S.C.
§ 2683. Congress established an initial standard for lead-
based paint, and then divided authority between EPA and the
Department of Housing and Urban Development (“HUD”) to
adjust the standard lower as needed in the future, with HUD
given jurisdiction to set standards for “target housing,” i.e.,
public housing, and EPA given jurisdiction for all other
locations. Id. § 2681(9). The initial definition of lead-based
paint was paint that contained “1.0 milligrams [of lead] per
centimeter squared or 0.5 percent by weight.” Id.
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 “ìg/ft2.” EPA established
standards for floors and window sills as “40 ìg/ft2 on floors
or 250 ìg/ft2 on interior window sills.” 40 C.F.R.
§ 745.65(b). Based on then available science, EPA estimated
that those standards would result in a one to five percent
chance of a child developing a blood lead level of
10 micrograms per deciliter (“ìg/dL”), which was then
believed to be the safe blood lead level. Identification of
Dangerous Levels of Lead, 66 Fed. Reg. 1206, 1215 (Jan. 5,
2001).
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
IN RE A COMMUNITY VOICE 7
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 ìg/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, four (Healthy Homes
Collaborative, New Jersey Citizen Action, Sierra Club, and
United Parents Against Lead) filed an administrative petition
with the EPA on August 10, 2009. The petition asked the
EPA to use its rulemaking authority to “more adequately
protect . . . children,” specifically by lowering the dust-lead
hazard standards to 10 ìg/ft2 for floors and 100 ìg/ft2 for
window sills, and to lower the standard for lead-based paint
to 0.06 percent lead by weight. After a notice and comment
period on the petition, EPA sent the Petitioners a letter on
8 IN RE A COMMUNITY VOICE
October 22, 2009, “grant[ing] [their] request” for a
rulemaking, though without a commitment to a specific
rulemaking outcome (e.g., adoption of the standards sought
by Petitioners) or a specific date certain for promulgation of
the rule. EPA noted that because it shared jurisdiction with
HUD over lead-based paint, it would work with HUD on that
aspect of the petition. This letter is the last direct
communication any of the Petitioners received from EPA
prior to their filing this mandamus petition.
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
IN RE A COMMUNITY VOICE 9
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 principle place of business.
15 U.S.C. § 2618(a). Any court that would have jurisdiction
to review a final rule has jurisdiction to determine if an
agency’s delay is unreasonable. Telecomms. Research &
Action Ctr. v. FCC, 750 F.2d 70, 75 (D.C. Cir. 1984)
(“TRAC”). Three of the Petitioners (California Communities
Against Toxics, Healthy Homes Collaborative, and Sierra
Club) have their principle place of business in California, and
thus jurisdiction would be proper in this court if they were
challenging a final rule. Under the All Writs Act, this court
is allowed to issue all writs appropriate “in aid of [our]
respective jurisdiction[].” 28 U.S.C. § 1651(a). We therefore
have jurisdiction to consider this mandamus petition.
When deciding whether to grant a mandamus petition on
the grounds of unreasonable delay, this court applies the six
factor balancing test set out by the D.C. Circuit in TRAC. See
Indep. Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir.
1997) (adopting the so-called TRAC factors). Of course, an
agency cannot unreasonably delay that which it is not
required to do, so the first step before applying the TRAC
factors is necessarily to determine whether the agency is
required to act, that is whether it is under a duty to act. See
10 IN RE A COMMUNITY VOICE
Norton v. S. Utah Wilderness All., 542 U.S. 55, 63 n.1 (2004).
It is to the question of duty we turn first.
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.” 42 U.S.C. § 4851a(1), (3). EPA
was instructed to “identify” whatever might constitute a
“lead-based paint hazard,” that Congress defined as a
“condition that causes exposure to lead . . . that would result
in adverse human health effects.” 15 U.S.C. §§ 2681(10),
2683. The TSCA further makes clear that this is an ongoing
duty, authorizing EPA to amend any regulations when
necessary, including in the case of lead-based paint,
amending the initial standard authorized by Congress. Id.
§ 2687. Further, Congress specifically demanded the creation
of a task force that would be instructed to advise EPA and
HUD as to “revising . . . regulations . . . issued by [HUD] and
other Federal agencies relating to lead-based paint poisoning
prevention.” 42 U.S.C. § 4852a(a), (c)(5).
This statutory framework clearly indicates that Congress
did not want EPA to set initial standards and then walk away,
IN RE A COMMUNITY VOICE 11
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. 15 U.S.C. § 2683
(“Within 18 months after October 28, 1992, the Administrator
shall promulgate regulations which shall identify, for
purposes of this subchapter and the [Paint Hazard Act], lead-
based paint hazards, lead-contaminated dust, and lead-
contaminated soil.”); id. § 2687 (“The regulations may be
amended from time to time as necessary.”). The EPA does
not dispute that now available information shows the
insufficiency of its present standards for achieving
Congress’s purposes.
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.” 5 U.S.C. § 555(b). This has been
interpreted to mean that an agency has a duty to fully respond
to matters that are presented to it under its internal processes.
See In re Am. Rivers & Idaho Rivers United, 372 F.3d 413,
418 (D.C. Cir. 2004). The Petitioners’ 2009 petition is such
a matter.
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
12 IN RE A COMMUNITY VOICE
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.” 5 U.S.C. §555(b); see Pub.
Citizen Health Research Grp. v. Comm’r, Food & Drug
Admin., 724 F. Supp. 1013, 1020 (D. D.C. 1989) (“Once an
agency decides to take a particular action, a duty to do so
within a reasonable time is created.”). An agency “cannot
simply refuse to exercise [its] discretion” to conclude a
matter. Indep. Mining Co., 105 F.3d at 507 n.6. Having
chosen to grant the petition for rulemaking, EPA came under
a duty to conclude a rulemaking proceeding within a
reasonable time. The agency does not comply with that duty
merely by “begin[ning] an appropriate proceeding.”
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 standard but grants OSHA regulatory
authority to amend the standard, OSHA is under a duty to act
where there is an “obvious need, apparent to OSHA” to alter
the initial standard in light of new information. Pub. Citizen
Health Research Grp. v. Auchter, 702 F.2d 1150, 1154, 1158
(D.C. Cir. 1983) (per curiam). The D.C. Circuit has further
held that an agency must, under the APA, “conclude within
IN RE A COMMUNITY VOICE 13
a reasonable time a matter presented to it.” Id. at 1153–54
(alterations omitted); see also In re Int’l Chem. Workers
Union, 958 F.2d 1144, 1150 (D.C. Cir. 1992) (per curiam).
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 the EPA’s view,
were it not to respond to the petition at all, this court could
grant mandamus and compel a time table for rulemaking, yet
if EPA “grants” the petition it can then delay indefinitely,
without any recourse to the Petitioners. This would allow the
EPA to grant petitions for rulemaking and take no action in
order to avoid judicial review. The dissent’s position that the
14 IN RE A COMMUNITY VOICE
EPA is under no duty to act leaves the agency unaccountable
and our children unsafe.
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
IN RE A COMMUNITY VOICE 15
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., 793 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.
16 IN RE A COMMUNITY VOICE
In our two other cases, claiming unreasonable delay, we
denied the petition. In California Power Exchange,
petitioners sought to compel the Federal Energy Regulatory
Commission to issue a final order regarding outstanding
refund requests, but a mere four months after the requests
were made. 245 F.3d 1110, 1125 (9th Cir. 2001). We
declined, noting that unreasonable delays under the TRAC
factors “involve[] delays of years, not months.” Id. And in
Independence Mining, petitioner sought mandamus relief
after two to three years of waiting for the Secretary of the
Interior to act on its mineral patent claims. 105 F.3d at 505.
We rejected the petitioner’s argument that the rule of reason
favored it, in part because Congress had recently expressly
given the Secretary of the Interior five years to resolve
outstanding applications. Id. at 509. We also rejected the
petitioner’s argument that the third (human welfare) and fifth
(interests prejudiced) factors favored issuing the writ, due to
the uncertainty over its mining claims and in view of the
mines’ employment of 600 people. Id. at 509–10. We noted
that the patents were unnecessary for the company to
continue to operate and employ its workers, and the company
had provided no evidence that employees’ jobs were at risk,
or that there were any real interests prejudiced by the delay.
Id.
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
IN RE A COMMUNITY VOICE 17
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. Rubbers 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.
Therefore, we grant the petition for the writ of mandamus.
18 IN RE A COMMUNITY VOICE
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
IN RE A COMMUNITY VOICE 19
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.
20 IN RE A COMMUNITY VOICE
N.R. SMITH, Circuit Judge, dissenting:
Because neither the Toxic Substances Control Act and the
amendments in the Paint Hazard Act (collectively referred to
as “TSCA”) nor the Administrative Procedures Act (“APA”)
mandates the Environmental Protection Agency (“EPA”) to
act, the majority improperly granted a writ of mandamus.
Therefore, I must dissent.
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
IN RE A COMMUNITY VOICE 21
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.” 42 U.S.C. § 4851a(1), (3).
Congress further articulated that “the Federal Government
must take a leadership role in building the infrastructure—
including an informed public, State and local delivery
systems, certified inspectors, contractors, and laboratories,
trained workers, and available financing and insurance—
necessary to ensure that the national goal of eliminating lead-
based paint hazards in housing can be achieved as
expeditiously as possible.” 42 U.S.C. § 4851(8). However,
“as any student of the legislative process soon learns, it is one
thing for Congress to announce a grand goal, and quite
another for it to mandate full implementation of that goal.”
Nat’l Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 178 (D.C. Cir.
1982).
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.” 15 U.S.C. § 2683. Everyone agrees that the EPA met
that mandate. The majority relies on Congress’s “findings,”
42 U.S.C. § 4851, and “purposes,” § 4851a, to conclude that
Congress mandated a further duty. Examining the language
of these statutes, they do not mandate a duty to act; they
merely outline the “grand goals” of Congress. As a general
rule in statutory interpretation, “[p]reambles to statutes do not
22 IN RE A COMMUNITY VOICE
impose substantive rights, duties or obligations.” Nat’l
Wildlife Fed’n v. Marsh, 721 F.2d 767, 773 (11th Cir. 1983)
(citing Ass’n of Am. RRs v. Costle, 562 F.2d 1310, 1316 (D.C.
Cir. 1977); Alexander v. HUD, 555 F.2d 166, 171 (7th Cir.
1977)). Nothing in the TSCA or related statutes (beyond the
preamble) outlines a further duty to act to implement those
goals.
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,”
42 U.S.C. § 4851a(1). Instead, the language of the TSCA
evidences that Congress made further regulation (after 1994)
discretionary. Congress said, “The regulations may be
amended from time to time as necessary.”1 15 U.S.C. § 2687
(emphasis added). The majority correctly noted that Congress
mandated that a task force be created to make
recommendations concerning “revising guidelines,
regulations, and educational pamphlets issued by the
Department of Housing and Urban Development and other
Federal agencies relating to lead-based paint poisoning
prevention.” 42 U.S.C.§ 4852a(a), (c)(5). However,
Congress did not even mandate that the EPA accept or act on
those task force recommendations nor did Congress alter the
discretionary language of 15 U.S.C. § 2687 regarding the
EPA’s duty to act in promulgating regulations. Despite these
stated goals (“findings” and “purposes”), there is nothing in
1
The majority suggests that “Congress did not want EPA to set initial
standards and then walk away.” Maj. Op. 10. Even assuming that
Congress desired the EPA “to engage in an ongoing process . . . to modify
initial standards when necessary to further Congress’s intent,” it
nevertheless saw fit not to require the EPA to act.
IN RE A COMMUNITY VOICE 23
the plain language of the TSCA, which mandates that EPA
has a continuing duty to implement regulations to meet the
goals. Cf. Tashima v. Admin. Office of U.S. Courts, 967 F.2d
1264, 1271 (9th Cir. 1992) (noting that “the use of the term
‘may’ bars a finding that the statute establishes a clear
unambiguous duty . . . , and thus bars a mandamus action”);
see also United States v. Rodgers, 461 U.S. 677, 706 (1983)
(explaining that “[t]he word ‘may,’ when used in a statute,
usually implies some degree of discretion”).
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
2
Petitioners requested that their petition be granted under either
15 U.S.C. § 2620 (“Citizens’ petitions” under the TSCA) or 5 U.S.C.
§ 553(e) (right to petition for rulemaking under the APA). The EPA
granted the request under the APA. Petitioners have not argued that their
request should have been granted under the 15 U.S.C. § 2620.
24 IN RE A COMMUNITY VOICE
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.” 5 U.S.C.
§ 555(b). Thus, Petitioners must show that (1) the EPA had
a nondiscretionary duty to act under the APA and (2) the EPA
unreasonably delayed in acting on that duty. Norton,
542 U.S. at 64; 5 U.S.C. §§ 555(b), 701(a)(2). If Petitioners
establish a right to relief, we can only “compel agency action
unlawfully withheld or unreasonably delayed.” See 5 U.S.C.
§ 706(1).
It appears that everyone agrees that the EPA fulfilled its
obligation to address Petitioners’ petition under 5 U.S.C.
§ 553(e). However, the dispute arises with regard to whether
the EPA assumed a nondiscretionary duty to engage in
rulemaking when it “granted” the petition, and, whether, after
granting the petition, the EPA unreasonably delayed in
engaging in rulemaking. See Am. Hosp. Ass’n, 812 F.3d at
189–90. Although the EPA granted the petition, the EPA did
not assume a duty to engage in rulemaking.3 Because the
APA creates a clear duty to act (if at all) only to those actions
agreed upon by the EPA, we must examine its response.
In this case, Petitioners presented a petition to the EPA
requesting that it begin rulemaking to (1) lower the dust-lead
3
Petitioners do not argue on appeal that the EPA failed to act in
accordance with its response in any manner except for Petitioners’
assertion that the EPA agreed to engage in a rulemaking.
IN RE A COMMUNITY VOICE 25
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,
4
In January 2017, HUD issued new rules regarding dust-lead hazard
action levels for floors and window sills. Although the EPA indicated that
it would work with HUD on the issue of the lead paint definition, the new
rules are not related to the lead paint definition. It appears that HUD did
not change the lead paint definition in the new rules. Thus, the new rules
do not clearly trigger a duty for the EPA to act.
26 IN RE A COMMUNITY VOICE
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 response. As the D.C.
Circuit noted, 5 U.S.C. § 553(e) “requires the agency to ‘fully
and promptly consider [the petition], [and] take such action
as may be required . . . . The agency may either grant the
petition, undertake public rule making proceedings or deny
the petition.’” WWHT, Inc. v. FCC, 656 F.2d 807, 813 (D.C.
Cir. 1981) (alteration omitted) (quoting S. Rep. No. 752
(1945)). “[T]he mere filing of a petition does not require an
agency to grant it, or to hold a hearing, or engage in any other
public rule making proceedings.” Id. (quoting S. Rep. No.
752). The EPA has the discretion to grant or deny a petition,
which would include, as here, granting the petition but
limiting the scope of the request. If Petitioners were not
satisfied with the limitations set forth in the EPA’s response,
they could have appealed the EPA’s response at that time.
Alternatively, Petitioners could have filed another petition
requesting rulemaking in light of the information the EPA
received in addressing this issue. Petitioners did neither.
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
IN RE A COMMUNITY VOICE 27
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
5
Judicial review of an agency’s decision made pursuant to § 553(e)
is available, although the scope of review is “very narrow” and
deferential; the agency’s decision must be sustained “if it violates no law,
is blessed with an articulated justification that makes a ‘rational
connection between the facts found and the choice made,’ and follows
upon a ‘hard look’ by the agency at the relevant issues.” WWHT, Inc.,
656 F.2d at 809, 817 (quoting Action for Children’s Television v. FCC,
564 F.2d 458, 479 (D.C. Cir. 1977)).
6
Because I find that the EPA did not have a duty to act, I would not
reach the issue of unreasonable delay.
28 IN RE A COMMUNITY VOICE
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. 12–13. One only has to read these cases to determine
that the majority’s reliance on them is misplaced. In Public
Citizen Health Research Group, Congress instructed the
Occupation Safety and Health Administration (“OSHA”) to
“give due regard to the urgency of the need for mandatory
health standards for particular workplaces.”7 Pub. Citizen
Health Research Grp., 702 F.2d at 1153 (alterations omitted)
(quoting 29 U.S.C. § 655(g)). The D.C. Circuit did not
conclude that this language created a duty for OSHA to act.
See id. Rather, it found no duty for OSHA to act based on
that statutory language. Instead, the duty arose when OSHA
recognized a need to act and assumed the duty when it stated
it “inten[ded] to proceed with rulemaking.” Id. at 1157; see
also Int’l Chem. Workers Union, 958 F.2d at 1146 (noting
that in response to a rulemaking petition, OSHA admitted a
“need to embark promptly on further rulemaking”). Thus,
both Public Citizen Health Research Group and International
Chemical Workers Union were resolved under the APA’s
mandate “to conclude [within a reasonable time] a matter
presented to it.” Pub. Citizen Health Research Grp.,
702 F.2d at 1153–54 (alteration in original). Neither case can
7
Even if this phrase could be read to have created a duty to act,
similar language is absent from the TSCA at issue here.
IN RE A COMMUNITY VOICE 29
be fairly read to suggest a statutory duty arises if the agency
is aware of an “obvious need.” See Pub. Citizens Health
Research Grp., 702 F.2d at 1154.
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. 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
8
I am sympathetic to Plaintiffs’ arguments that the EPA should enact
rules to help eliminate lead poisoning in children. The EPA does not
dispute that currently approved lead levels cause harm to children. It also
does not specifically dispute that levels could be lowered to help eliminate
this risk. Yet, the EPA refuses to engage in rulemaking to address this
issue solely because Congress has not required it to act. Counsel for the
EPA represented that the EPA was not interested in working with
Plaintiffs on this issue. Further, the EPA represented that it had no plans
to engage in rulemaking in the future on this very serious issue (despite
representations in its brief that it would conclude these proceedings by
2023). Given these circumstances, I understand the majority’s desire to
find a duty for the EPA to act. I do not understand why the EPA has not
acted. However, it is for Congress, not the courts, to mandate the EPA
achieve the goals it set forth in its “findings” and “purposes.”
30 IN RE A COMMUNITY VOICE
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.