DocketNumber: Case No. 17–cv–02162–EMC
Citation Numbers: 302 F. Supp. 3d 1058
Judges: Chen
Filed Date: 2/7/2018
Status: Precedential
Modified Date: 7/25/2022
This is an action under Section 21 of the Toxic Substances Control Act ("TSCA"), codified at
I. FACTUAL BACKGROUND
The Court assumes familiarity with the facts of this case, which are set forth in more detail in the Court's recent order denying the EPA's motion to dismiss. See Docket No. 42. In sum, Plaintiffs petitioned the Environmental Protection Agency to issue a rule under Section 6(a) of the Toxic Substances Control Act, codified at
Now, the parties dispute whether the Court's review should be confined to the administrative record (i.e. , Plaintiffs' petition and the EPA's official denial) according to principles generally applicable to the review of agency action under the Administrative Procedure Act (
II. STATUTORY BACKGROUND
The TSCA provides that when the EPA denies a citizen petition, "the petitioner may commence a civil action in a district court of the United States to compel the Administrator to initiate a rulemaking proceeding as requested in the petition."
*1061
In an action under subparagraph (A) respecting a petition to initiate a proceeding to issue a rule under section 2603, 2605, or 2607 of this title ... the petitioner shall be provided an opportunity to have such petition considered by the court in a de novo proceeding. If the petitioner demonstrates to the satisfaction of the court by a preponderance of the evidence that-
[...]
(ii) in the case of a petition to initiate a proceeding for the issuance of a rule under section 2605(a) or 2607 of this title.... the chemical substance or mixture to be subject to such rule or order presents an unreasonable risk of injury to health or the environment, without consideration of costs or other nonrisk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation, under the conditions of use.
the court shall order the Administrator to initiate the action requested by the petitioner.
No statutory provision specifically addresses the scope of review in a judicial action, i.e. , whether the reviewing court is constrained to the materials presented to and considered by the agency.
III. DISCUSSION
Statutory interpretation begins with the text of the statute. See Los Angeles Lakers, Inc. v. Fed. Ins. Co. ,
The EPA argues that the statute clearly limits the Court's review to the administrative record because it states that petitioner is only entitled "an opportunity to have such petition considered by the court in a de novo proceeding."
Plaintiffs, in contrast, argue that Defendant's reading of "such petition" is contradicted by the text of the statute, which guarantees a "de novo proceeding " rather than "de novo review "; that the statute only requires the citizen petition to present the agency with "facts" supporting its position, rather than "evidence"; that the statute permits a prevailing plaintiff to recover costs for expert witnesses, undermining the notion that Congress intended to preclude discovery; and that the legislative history affirms that Congress envisioned discovery rather than a limited administrative *1062record (as typically would be the case in judicial review under, e.g. , the Administrative Procedure Act ("APA") ) in litigation under this provision.
As explained below, Plaintiffs' interpretation is more persuasive in light of the statutory text, structure, and purpose.
A. Statutory Text
The statute does not explicitly provide for a scope of review. Rather, it states that the plaintiff shall be entitled to "an opportunity to have such petition considered by the court in a de novo proceeding."
1. The Phrase "such petition" Does Not Imply a Limitation to the Administrative Record
Defendant's reliance on the term "such petition" to imply a limited scope of review is unpersuasive. Defendant treats "such petition" as equivalent to "administrative record," but does not explain why that elision is justified or logical. If "such petition" is read literally, then it would mean "such petition," i.e. , only the materials submitted by the citizen petitioner. Under that literal reading, the EPA's denial of the petition and any scientific materials the EPA cites in support of the denial would also be excluded from the Court's scope of review because they would not be in "such petition." Rather, it would be in the EPA's response to "such petition." By expanding the term "such petition" to "administrative record" so that it encompasses the EPA's denial, the EPA has implicitly conceded that the term cannot be construed literally to circumscribe the scope of record review to "such petition."
If the term should not be construed literally, then it is unclear why the EPA's narrow interpretation should be adopted. The EPA relies principally on language in Trumpeter Swan Soc. v. E.P.A. stating that, "[i]n the normal TSCA section 21 case, we would review the administrative record to determine whether the environmental groups had [demonstrated their burden]."
In addition, Trumpeter does not address the D.C. Circuit's earlier holding in Environmental Defense Fund v. Reilly ,
The plaintiff in a Section 21 proceeding is entitled to de novo consideration of his *1063petition for issuance of a new rule, but APA review, save in rare instances, must be conducted on the administrative record. The Section 21 plaintiff must demonstrate, by a preponderance of the evidence, a risk affecting health or the environment; on APA review, the agency's action must be evaluated on the record. While the Section 21 court, proceeding de novo, is free to disregard EPA's reasoning and decision, APA review is restricted and highly deferential. If the Section 21 plaintiff carries his burden and the court makes any one of the statutorily-specified determinations, the court itself directs the disposition to be made of the petition. On the other hand should a district court on APA review find agency action defective, either substantively or procedurally, it ordinarily must remand to the agency for further proceedings.
The D.C. Circuit's contrast between Section 21 and the APA is significant. The D.C. Circuit reasoned in Reilly not only that the standard of review (i.e. , the degree of deference owed to the agency's position) differed under the TSCA and APA, but also that the scope of review was distinct, as the court reiterated several times the APA's presumptive limitation to the administrative record as a factor distinguishing TSCA from APA review. The clear implication of Reilly is that Section 21 petitions are not limited to the administrative record.
Accordingly, the EPA's interpretation of the term "such petition" with respect to the scope of review is not persuasive because it contradicts the EPA's own position and is not supported by case law.
2. The Phrase "de novo proceeding" Suggests a Broader Scope of Review
The EPA argues that the term "de novo" alone does not suggest an entitlement to discovery beyond the administrative record. However, the EPA ignores the third word-"de novo proceeding. " Thus, the only cases it cites in support of its argument are inapposite because they do not involve statutes that use the term "de novo proceeding" but rather discuss the scope of "de novo review. " See Perry v. Simplicity Engineering ,
As Plaintiffs point out, a "proceeding" is "[t]he regularly and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment." Proceeding, Black's Law Dictionary (10th ed. 2014). The term "is more comprehensive than the word 'action,' but it may include in its general sense all the steps or measures adopted in the prosecution or defense of an action, including the pleadings and judgment."
Thus, federal courts have used the term "de novo proceeding" to encompass more than a standard of review limited to an administrative record, permitting consideration of evidence beyond such a record.
*1064See Hyatt v. Kappos ,
Accordingly, the statutory text more readily supports the view that Plaintiffs are not confined by the administrative record in this de novo proceeding.
B. Statutory Structure
Plaintiffs' reading is also supported by the structure of the statute. As Plaintiffs point out, the TSCA provides for two different judicial review procedures of citizen petitions. Under Section 21, citizen petitions that request the EPA to initiate a new rule are entitled to a "de novo proceeding." See
That Congress specifically stated that citizen petitions requesting new rules are entitled to a "de novo proceeding" while citizen petitions requesting the amendment or repeal of a rule are only entitled to APA-like review strongly suggests that "de novo proceeding" means something broader than record review. See Barnhart v. Sigmon Coal Co., Inc. ,
The EPA does not provide a reasonable explanation for why the statute would use different language to mean the same standard of review in both sections as EPA so argues. The EPA contends that Section 19 provides for review in the courts of appeal, which would not consider new evidence, but that begs the question and actually supports the opposite conclusion. Section 21 petitions are not sent to the courts of appeal but rather to the trial court in the first instance. The different procedure and the different description of review available suggest that judicial review for the denial of a Section 21 petition seeking a new rule is not limited to an administrative record.
C. Statutory Purpose
The purpose of judicial review in the TSCA context also more readily supports Plaintiffs' interpretation. According to the TSCA, plaintiffs must demonstrate to "the satisfaction of the court by a preponderance of the evidence" whether a particular chemical substance presents an unreasonable risk of harm. See
This purpose distinguishes TSCA cases from the ERISA cases relied upon by Defendant, where courts are presumptively limited to the administrative record unless the plaintiff clearly establishes a need for extra-record evidence. See , e.g. , Opeta v. Nw. Airlines Pension Plan for Contract Employees ,
*1066Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan ,
First, the ERISA statute does not provide for either a standard or scope of review; both standards have been judicially-crafted. See Firestone Tire & Rubber Co. v. Bruch ,
Second, the rationale for limiting de novo review in ERISA cases to the record is tied specifically to effectuating ERISA's purpose. As explained in Quisinberry v. Life Ins. Co. of N. Am. ,
The TSCA context is decidedly different. As previously noted by the Court, the overarching purpose of the TSCA is to protect the public from chemicals that pose an unreasonable risk to health and the environment, and citizen petitions are considered a powerful tool in forcing the EPA's hand in that regard. See Docket No. 42 at 18-20. Indeed, "[t]he responsiveness of government is a critical concern and the citizens' petition provision will help to protect against lax administration of the [TSCA]." S. Rep. 94-698, reproduced at 1976 U.S.C.C.A.N. 4491, 4503.
This background-as well as the lack of any express statutory language to the contrary-also explains why Defendant's general argument that standard administrative law principles should apply is not persuasive. Plaintiffs cite to *1067Kappos v. Hyatt ,
In reaching its holding, the Supreme Court rejected the PTO's argument that, notwithstanding the absence of an express limitation, the statute "should be read in light of traditional principles of administrative law, which Congress codified in the APA."
Similarly, here, Section 21 does not provide for remand to the agency, and there is no reason why a court would be unable to adjudicate whether an unreasonable risk has been shown on the basis of new evidence, even if the EPA had not seen the evidence in connection with the administrative petition.
The legislative history also supports Plaintiffs' interpretation regarding the purpose of a de novo proceeding under Section 21. The Senate Committee Report regarding this provision states that, "[i]n a judicial review of the Administrator's denial of a citizen's petition or failure to act, there would be no record upon which the review could be based, and therefore a de novo procedure is essential to provide the opportunity to develop such a record." S. Rep. 94-698 (1976), reproduced at 1976 U.S.C.C.A.N. 4491, 4503 (emphasis added). Moreover, the Report states that "[a]fter gathering evidence in a de novo procedure, the courts would be authorized to require the initiation of the action requested if the petitioner has shown that the action requested is justified." Id. at 4499 (emphasis added). The House Conference Report similarly explains that the statute "affords greater rights to a person petitioning for the issuance of a rule or order [than to a *1068petitioner seeking the amendment or repeal of a rule] because in such a situation the Administrator will not previously have addressed the issue by rule or order." H. R. Conf. Rep. 94-1679 (1976), reproduced at 1976 U.S.C.C.A.N. 4539, 4583. The clear implication is that Congress intended the Section 21 judicial review petition to go beyond the record; there is no way to square the language concerning "gathering evidence" and "develop[ing] a record" with Defendant's interpretation.
Defendant argues that the legislative history is ambiguous because it applies "at most" to circumstances where the EPA fails to respond to a petition. This appears to be based on the premise that when the EPA denies a petition and publishes its reasons, there is a record for the Court to review. This premise is mistaken because even when the EPA fails to publish its reasons for a denial, a record exists in the form of the petition itself. Moreover, it is equally possible-as Plaintiffs assert-that the legislative history suggests that Congress did not view the petition and denial to constitute an adequate record, particularly when compared with the more comprehensive record that would be generated under a formal rulemaking process subject to notice-and-comment.
As the statute itself makes clear, the purposes of the TSCA, at least with respect to Section 21 citizen petitions seeking institution of a new rule, are not served by general administrative law principles. That conclusion is bolstered by the legislative history, which indicates that Congress intentionally provided for a "de novo proceeding" under Section 21 broader than the APA-like review under Section 19.
D. Policy
Defendant ultimately falls back on policy arguments, some of which have significant force. For example, Defendant argues that Plaintiffs already had an "opportunity" to make a case to the EPA with all the evidence they need because they did not have any time limits or restrictions on when they could submit their petition or what evidence they could include to support it. If petitioners are permitted to simply file suit, then they will be able to file barebones administrative petitions and then sandbag the EPA with new evidence in litigation, effectively depriving the agency of an opportunity to avoid litigation by reviewing an adequate petition on the merits first. Moreover, the EPA contends that an open record would render meaningless the requirement that the administrative petition "set forth the facts" making a rule necessary. See
The EPA's concerns are forceful but ultimately do not bear the weight of the statutory text, structure, purpose, and legislative history to the contrary. Defendant's argument also overlooks policy reasons why an open record would be permitted. For example, as Plaintiffs pointed out at the hearing, new studies relevant to the merits have been issued after their petition was denied, and therefore they were unable to present such evidence in their petition. Defendant also overlooks the fact that even though a petitioner has unlimited time to prepare their initial petition, *1069they do not have a chance to respond to the EPA's denial or evidence prior to this civil proceeding.
The EPA's concern about the risk of being sandbagged and surprised with new evidence in litigation not presented in the EPA petition, although fair, is likely exaggerated. Citizen petitioners do not gain much by withholding evidence supporting their position from the EPA. They have every incentive to make their best case and present their best evidence directly to the EPA in an administrative petition. The administrative process is quick and efficient, as the EPA must act within 90 days of receiving a petition. Litigation, in contrast, will certainly take much longer and undoubtedly involve greater expense. Indeed, the Supreme Court rejected a similar concern in Kappos . It found unpersuasive the PTO's argument that permitting new evidence to be submitted to a district court would "encourage patent applicants to withhold evidence from the PTO intentionally with the goal of presenting that evidence for the first time to a nonexpert judge," because "[a]n applicant who pursues such a strategy would be intentionally undermining his claims before the PTO on the speculative chance that he will gain some advantage in the § 145 proceeding by presenting new evidence to a district court judge."
Further, contrary to the EPA's suggestion, the Court's interpretation would not render the requirement to present an administrative petition setting forth the "facts" requiring a rule meaningless. See
Furthermore, the Court's holding does not foreclose the possibility of limiting discovery depending on the equities when a petitioner's conduct so requires, such as when a barebones petition is presented, but the EPA is purposefully ambushed with a mountain of new evidence or specific allegations in litigation. For example, in Kappos , Justice Sotomayor, joined by Justice Breyer, explained in a concurring opinion that "[c]onsistent with ordinary equity practice and procedure, there may be situations in which a litigant's conduct before the PTO calls into question the propriety of admitting evidence presented for the first time in a § 145 proceeding before a district court." Kappos ,
Indeed, the absence of a presumptive limitation to the administrative record under Section 21 does not mean that discovery will be unbridled. Discovery is still limited to matters "relevant" to the "claim[s] or defense[s] and proportional to the needs of the case." Fed. R. Civ. P. 26(b)(1). Given the elements of the claim (likely defined by the petition herein), discovery should be focused on scientific evidence and expert discovery regarding the risk of injury to health or the environment posed by the chemical substances at issue in Plaintiffs' petition. At the hearing, Plaintiffs stated that their discovery requests could include document discovery related to internal studies the EPA has performed or other data it possesses, including that received from third parties, which relates to whether fluoride chemicals present a risk of neurotoxic harm. On its face, that does not appear burdensome or unreasonable, particularly in light of the fact that such evidence would not have been previously available to Plaintiffs but is within the scope of the petition.
*1071In sum, Defendant has not shown that the TSCA creates a presumptive rule against discovery nor a limitation of review to the administrative record.
IV. CONCLUSION
For the reasons stated, the Court DENIES Defendant's motion for a protective order limiting review to the administrative record. The statutory text, structure, purpose, and legislative history all support the conclusion that TSCA Section 21 judicial review is not subject to APA-like limitations or principles. The parties shall meet and confer and agree upon a discovery plan consistent with this Order.
This order disposes of Docket No. 41.
IT IS SO ORDERED .
The EPA also moved to strike Plaintiffs' demand for a jury trial on the basis that this is a case in equity not at law, but Plaintiffs have withdrawn their demand so the issue is moot.
The EPA's citation to Hall v. Norton ,
Defendant attempts to distinguish the cases cited by plaintiff on the basis that the remarks were made in passing, that they involved cases where review was not confined to the administrative record, or they were specific to the statute involved. Reply at 5. Though these cases are not binding, they are simply evidence that the term "de novo proceeding" is treated interchangeably with "de novo trial." In contrast, Defendant has not identified any examples where the term "de novo proceeding" was used to refer simply to de novo review confined to an administrative record.
It is true, as the EPA points out, that the court also mentioned that "de novo" did not necessarily "entail any trial-type hearing" where no hearing was required at the agency level, but that caveat does not affect the analysis here because the TSCA provides for a "de novo proceeding" whereas in Doe it only provided for a "determin[ation]" de novo. See Doe ,
Plaintiffs also argue that the TSCA envisions discovery because it permits the prevailing plaintiff to seek reimbursement for expert witness fees. See
Plaintiffs claim that another reason for rejecting the record review standard is that the EPA has "absolute discretion in what investigative procedures it will use to vet the facts" as well as "the option of conducting no investigation at all." The Court need not reach the question whether the EPA actually has "absolute discretion," particularly in light of language in Reilly which expressly left open the question whether a citizen petitioner could pursue APA remedies on a Section 21 petition in lieu of Section 21 judicial review. Reilly ,
Defendant attempts to distinguish Kappos on the basis that prior case law had already accepted the proposition that the district court could accept new evidence. This distinction is immaterial however. The issue in Kappos was whether the ability to submit new evidence should be limited pursuant to general APA principles, the exact argument the EPA makes here (having conceded that the same exceptions to APA record review would also apply here, including the receipt of expert testimony to aid the court in understanding the record). Thus, Kappos is highly relevant to this case insofar as statutory construction is concerned.
The stark contrast between the record developed after notice-and-comment and the "record" consisting of a petition and official denial also explains why Section 19 judicial review (governing the first situation) is limited to APA-like deference while Section 21 review (governing the latter situation) is broader.
As Plaintiffs state, despite being offered an opportunity for an oral meeting, the EPA allegedly "refused to answer any questions at the meeting, and never held any hearings where Plaintiffs could respond to EPA's scientific contentions, thereby denying Plaintiffs any opportunity to understand and respond to EPA's positions prior to publication of EPA's denial in the Federal Register." Opp. at 16.
In this regard, a useful analogy may be found in the context of employment discrimination under Title VII of the Civil Rights Act. Under Title VII, a plaintiff must file an administrative charge with the Equal Employment and Opportunity Commission or an analogous state agency before filing suit. See , e.g. , Leong v. Potter ,
The EPA's claim that Plaintiffs could have obtained such evidence through the Freedom of Information Act is unavailing as litigants in civil discovery are often entitled to more than the FOIA statute provides. Moreover, FOIA waiting times are often very long and may unduly delay the ability to present a complete petition to the EPA prior to litigation.