A Community Voice v. U.S. Envtl. Prot. Agency (In re A Community Voice)

• Decision Date: 27 December 2017
• Docket Number: No. 16-72816,16-72816
• Citation: 878 F.3d 779
• Parties: 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, 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.
• Court: U.S. Court of Appeals — Ninth Circuit

878 F.3d 779

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,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.

Argued and Submitted June 12, 2017, San Francisco, California

Filed December 27, 2017

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.

Before: Mary M. Schroeder and N. Randy Smith, Circuit Judges, and Lawrence L. Piersol,^* District Judge.

Dissent by Judge N.R. Smith

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, 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 "µg/ft²." EPA established standards for floors and window sills as "40 µg/ft² on floors or 250 µg/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 ("µg/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 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, 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 µg/ft² for floors and 100 µg/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 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 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. 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 Norton v. S. Utah Wilderness All. , 542 U.S. 55, 63 n.1, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). It is to the question of duty we turn first.

II. Duty

Petitioners point to two statutory...