Environmental Defense Fund v. Reilly, Nos. 88-5325

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore WALD, Chief Judge, RUTH BADER GINSBURG, Circuit Judge, and ROBINSON; SPOTTSWOOD W. ROBINSON, III
Citation909 F.2d 1497
Parties, 285 U.S.App.D.C. 316, 20 Envtl. L. Rep. 21,105 ENVIRONMENTAL DEFENSE FUND, et al., Appellants, v. William K. REILLY, Administrator, Environmental Protection Agency, et al., Appellees, Chemical Manufacturers Association, et al., Intervenors.
Decision Date27 July 1990
Docket NumberNos. 88-5325,88-5326

Page 1497

909 F.2d 1497
31 ERC 1649, 285 U.S.App.D.C. 316, 20
Envtl. L. Rep. 21,105
ENVIRONMENTAL DEFENSE FUND, et al., Appellants,
v.
William K. REILLY, Administrator, Environmental Protection
Agency, et al., Appellees,
Chemical Manufacturers Association, et al., Intervenors.
Nos. 88-5325, 88-5326.
United States Court of Appeals,
District of Columbia Circuit.
Argued Jan. 8, 1990.
Decided July 27, 1990.

Appeals from the United States District Court for the District of Columbia.

Mark Van Putten, with whom Karen Florini was on the brief, for appellants.

David C. Shilton, Atty., Dept. of Justice, with whom Robert L. Klarquist and Fred R. Disheroon, Attys., Dept. of Justice, and Alan Carpien, Atty., E.P.A., were on the brief, for appellees.

Edward S. Warren, with whom Timothy S. Hardy, James R. Walpole, Andrew A. Giaccia, David F. Zoll and Matthew B. Van Hook were on the brief, for intervenors.

Before WALD, Chief Judge, RUTH BADER GINSBURG, Circuit Judge, and ROBINSON, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge SPOTTSWOOD W. ROBINSON, III.

SPOTTSWOOD W. ROBINSON, III, Senior Circuit Judge:

Appellants, the Environmental Defense Fund and the National Wildlife Federation, jointly petitioned the Environmental Protection Agency (EPA) 1 to issue, pursuant to the Toxic Substances Control Act, 2 rules designed to protect human health and the environment from allegedly harmful dioxins and furans. EPA denied the petition in major part, whereupon appellants brought this suit in the District Court. Appellants contended that EPA's disposition of their request for rulemaking contravened the Administrative Procedure Act (APA). 3 Appellants also invoked Section 21 of the Toxic Substances Control Act, which authorizes citizen petitions seeking promulgation of rules and orders under designated provisions thereof, and affords an opportunity for de novo district-court review of denials

Page 1498

of such petitions. 4 The District Court awarded summary judgment to EPA on appellants' APA challenge, and that ruling is the subject of these appeals. The court later entered a consent decree settling all of appellants' Section 21 claims. We hold that appellants, having elected to pursue the Section 21 remedy to the results achieved by the settlement, cannot now resort to the APA.

I. BACKGROUND

A. The Toxic Substances Control Act

Enactment of this legislation in 1976 launched a "comprehensive program" 5 to anticipate and forestall injury to health and the environment from activities involving toxic chemical substances. 6 Congress structured the Act to fill "conspicuous gaps" in the protection afforded by preexisting "fragmented and inadequate" statutes, 7 and committed administration of the Act to EPA. 8 A brief resume of the Act's highlights serves the purposes of these appeals.

The Act provides in Section 4 for substance testing, 9 and in Section 5 for notice of intent to manufacture new substances or existing substances for significant new uses. 10 Section 6 requires imposition of restrictions when the substance is hazardous, 11 and Section 7 authorizes judicial proceedings for injunctive and other relief when danger is imminent. 12 Section 8 calls for retention and reporting of information, 13 and Section 10 for research, monitoring and dissemination of data. 14

Section 6 is one of the most important features of the Act. It specifies that if EPA

finds that there is a reasonable basis to conclude that the manufacture, processing, distribution in commerce, use, or disposal of a chemical substance or mixture ... presents or will present an unreasonable risk of injury to health or the environment, [the agency must] by rule apply one or more of [prescribed] requirements to such substance or mixture to the extent necessary to protect adequately against such risk using the least burdensome requirements. 15

These requirements include limitations on manufacture, processing, distribution or use of such substances; 16 regulated methods of disposal of substances; 17 warnings and instructions; 18 notification of unreasonable risks of injury; 19 and preparation and retention of records pertaining to manufacture, processing, monitoring and testing. 20 EPA is also empowered to issue orders exacting individual compliance with the Act. 21

Among a variety of mechanisms supplied for enforcement of the Act 22 are two entailing

Page 1499

citizen activity. 23 Citizen participation is broadly permitted to "ensure that bureaucratic lethargy does not prevent the appropriate administration of this vital authority." 24 One form of citizen participation is authorized by Section 21, 25 and is central to the parties' dispute. By virtue of that section, "[a]ny person may petition [EPA] to initiate a proceeding for the issuance, amendment, or repeal of a rule ... or an order" under designated provisions of the Act. 26 If EPA grants the petition, it must "promptly commence an appropriate proceeding." 27 If, however, a petition requesting issuance of a new rule is denied, or the agency fails to grant or deny the request within a designated period, the petitioner may obtain de novo review in a federal district court. 28 If the petitioner, once in court, meets a preponderance-of-the evidence standard, the court must order EPA to take suitable action. 29 A saving clause in Section 21 specifies that "the[se] remedies ... shall be in addition to, and not in lieu of, other remedies provided by law." 30

B. The Procedural History

In 1984, appellants jointly petitioned EPA, 31 "solely under the authority of section 21," 32 to promulgate rules under Sections 4, 6 and 8 to curtail releases of dioxins and furans into the environment. 33 The petition further requested imposition of Section 8 record-keeping and reporting requirements, ostensibly to enable monitoring of the results. 34 The petition also asked that, should EPA lack sufficient data to make the threshold finding required by Section 6, 35 a testing rule be issued under Section 4 to gather whatever additional information might be needed. 36

EPA denied the petition to the extent that it sought substantive rulemaking under Section 6 "because [it did] not believe sufficient information existed to issue such rules." 37 The petition was also rejected insofar as EPA felt that appellants' concerns

Page 1500

should be redressed under other federal statutes. 38 EPA explained that "it lack[ed] critical information to decide whether all of the isomers of concern present an unreasonable risk," 39 but announced that it was "granting the petition by commencing administrative proceedings to determine whether findings sufficient to support initiation of a rulemaking proceeding under section 4 and/or 8 may be made," 40 and pledged that it would "consider issuing section 6 rules when sufficient data are obtained." 41

Thereupon, appellants sued in the District Court. In Count I of their complaint, they applied for Section 21 de novo review of EPA's refusal to proceed with substantive rulemaking under Section 6. 42 In Counts II through VIII, they sought judicial testing of EPA's decision by the standards established by the APA. 43 The court, deeming unavailable any APA review of denials of Section 21 petitions seeking issuance of new rules, 44 granted EPA's motion for summary judgment with respect to Counts II through VIII. 45 The court perceived "an inherent illogic to [appellants'] contention that a petition denial is simultaneously subject to both de novo and APA review," 46 and opined that its ruling was "further underscored by section 21's complete lack of substantive standards governing the agency's consideration of such petitions." 47 By the court's assessment, neither the section's saving clause 48 nor any other of the sundry grounds advanced by appellants 49 sufficed as a basis for APA review of the action taken on appellants' petition. 50

C. The Settlement Agreement

Before the District Court addressed Count I, which sought Section 21 review, the parties agreed to a settlement of all substantive claims asserted in that count. This agreement was incorporated into an elaborate consent decree, 51 which the District Court "entered as [its own] Order." 52 The decree states that it was "entered for the exclusive purpose of compromising and settling Count I of the" amended complaint; 53 it recites that "the parties wish to settle the dispute" so described; 54 and it provides that "[t]his decree shall apply to and be binding upon the parties to this action, and upon the officers, successors, agents, employees and assigns of the parties." 55

The consent decree directs EPA to investigate the need to promulgate rules and orders to redress appellants' concerns, and, within prescribed time limits, to either commence

Page 1501

appropriate proceedings or announce its refusal to do so. 56 The decree states that it is in "full satisfaction of all claims" embraced by Count I or assertible under Section 21 with respect to dioxin-furan regulation under the Act of activity which other agency-administered statutes empower EPA to deal with. 57 The decree provides that its entry also constitutes entry of final judgment on Counts II-IX, 58 and binds appellants to move for dismissal of Count I with prejudice when EPA completes the tasks required by the agreement. 59

D. The Parties' Contentions

Appellants maintain that the District Court erred in holding that APA review of administrative denials of Section 21 new-rule petitions is legally out of reach. They argue that "[n]othing in the language or legislative history of [the Act] explicitly indicates congressional intent to preclude APA review of citizens' petition denials." 60 They point particularly to the " 'strong presumption' " that agency decisions are subject to judicial review, 61 and to Section 21's saving clause as evidence of congressional intent to preserve APA review of petition denials. 62 Appellants also take issue with the...

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    ...denial ... to utilize simultaneously both the [separate statutory] review provision and the APA." (quoting Envtl. Def. Fund v. Reilly , 909 F.2d 1497, 1501 (D.C. Cir. 1990) )). As relevant here, the FECA provides that "[a]ny party aggrieved by an order of the Commission dismissing a complai......
  • Am. Fed'n of Labor & Cong. of Indus. Organizations v. Nat'l Labor Relations Bd., Civ. No. 20-cv-0675 (KBJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 7, 2020
    ...matter to the agency so that the agency can reconsider the rule in light of the court's ruling. See, e.g. , Envtl. Def. Fund v. Reilly , 909 F.2d 1497, 1506 (D.C. Cir. 1990) (explaining that, "should a district court on APA review find agency action defective, either substantively or proced......
  • State v. Salazar, Civil Action Nos.: 11-2253 (RBW)
    • United States
    • U.S. District Court — District of Columbia
    • March 15, 2016
    ...that permits an agency to correct administrative deficiencies through litigation in court. See, e.g., Envtl. Def. Fund v. Reilly, 909 F.2d 1497, 1506 (D.C.Cir.1990) (“[S]hould a district court on APA review find agency action defective, either substantively or procedurally, it ordinarily mu......
  • Request a trial to view additional results
28 cases
  • El Rio Santa Cruz Neigh. v. U.S. Dept. of Health, No. 04-5089.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 8, 2005
    ...a statute provides an independent cause of action or an alternative review procedure. See, e.g., Envtl. Def. Fund v. Reilly ("EDF "), 909 F.2d 1497, 1501 (D.C.Cir.1990); Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 945 (D.C.Cir.2004); Council of & for the Blind v. Regan ("......
  • Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm'n, Civil Action No. 16-259 (BAH)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 22, 2017
    ...denial ... to utilize simultaneously both the [separate statutory] review provision and the APA." (quoting Envtl. Def. Fund v. Reilly , 909 F.2d 1497, 1501 (D.C. Cir. 1990) )). As relevant here, the FECA provides that "[a]ny party aggrieved by an order of the Commission dismissing a complai......
  • Am. Fed'n of Labor & Cong. of Indus. Organizations v. Nat'l Labor Relations Bd., Civ. No. 20-cv-0675 (KBJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • June 7, 2020
    ...matter to the agency so that the agency can reconsider the rule in light of the court's ruling. See, e.g. , Envtl. Def. Fund v. Reilly , 909 F.2d 1497, 1506 (D.C. Cir. 1990) (explaining that, "should a district court on APA review find agency action defective, either substantively or proced......
  • State v. Salazar, Civil Action Nos.: 11-2253 (RBW)
    • United States
    • U.S. District Court — District of Columbia
    • March 15, 2016
    ...that permits an agency to correct administrative deficiencies through litigation in court. See, e.g., Envtl. Def. Fund v. Reilly, 909 F.2d 1497, 1506 (D.C.Cir.1990) (“[S]hould a district court on APA review find agency action defective, either substantively or procedurally, it ordinarily mu......
  • Request a trial to view additional results

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