Natural Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency
| Citation | 961 F.3d 160 |
| Decision Date | 05 June 2020 |
| Docket Number | August Term, 2019,Nos. 18-2121-ag,18-2670-ag,s. 18-2121-ag |
| Parties | NATURAL RESOURCES DEFENSE COUNCIL, INC., State of Vermont, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Andrew R. Wheeler, in his capacity as Administrator of the U.S. Environmental Protection Agency, Respondents. |
| Court | U.S. Court of Appeals — Second Circuit |
Gabriel Daly, Natural Resources Defense Council, New York, NY (Katherine Desormeau, Natural Resources Defense Council, San Francisco, CA; Sarah C. Tallman, Natural Resources Defense Council, Chicago, IL, on the brief), for Petitioner Natural Resources Defense Council, Inc.
Justin E. Kolber, Assistant Attorney General, for Thomas J. Donovan, Jr., Attorney General for the State of Vermont, Montpelier, VT, for Petitioner State of Vermont.
Andrew S. Coghlan, Trial Attorney, Environmental Defense Section, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C. (Jeffrey Bossert Clark, Assistant Attorney General, Jonathan D. Brightbill, Deputy Assistant Attorney General, Erin Koch, U.S. Environmental Protection Agency, Washington, D.C. on the brief), for Respondents.
Ellen F. Rosenblum, Attorney General of Oregon, Benjamin Gutman, Solicitor General, Oregon, Steven Novick, Special Assistant Attorney General, Oregon, William Tong, Attorney General of Connecticut, Clare E. Connors, Attorney General of Hawaii, Aaron Frey, Attorney General of Maine, Brian E. Frosh, Attorney General of Maryland, Maura Healey, Attorney General of Massachusetts, Gurbir S. Grewal, Attorney General of New Jersey, Josh Shapiro, Attorney General of Pennsylvania, Peter F. Neronha, Attorney General of Rhode Island, Robert W. Ferguson, Attorney General of Washington, Max Kieley, Assistant Attorney General, Minnesota, for Amici Curiae Oregon, Connecticut, Hawaii, Massachusetts, Maine, Maryland, Minnesota (by and through its Minnesota Pollution Control Agency), New Jersey, Pennsylvania, Rhode Island, and Washington.
Before: Walker, Lynch, and Sullivan, Circuit Judges.
In 2016, Congress amended the Toxic Substances Control Act of 1976 ("TSCA") to require the U.S. Environmental Protection Agency ("EPA") to "carry out and publish" a triennial "inventory of mercury supply, use, and trade in the United States." 15 U.S.C. § 2607(b)(10)(B). In 2018, EPA promulgated the Mercury Reporting Rule ("Reporting Rule"). As relevant here, the Reporting Rule requires "[a]ny person who manufactures (including imports)" mercury or a "mercury-added product" to report information on their products, see 40 C.F.R. §§ 713.7(a), (b), 713.9 ; it also exempts certain categories of manufacturers and importers from various reporting obligations. Three of those exemptions are at issue in this case. Under § 713.7(b)(2) and (b)(3), importers and manufacturers, respectively, of products that contain a mercury-added product as a component are exempt from all reporting requirements. Under § 713.9(a), persons who manufacture or import elemental mercury or mercury compounds in significantly large amounts are exempt from certain reporting requirements.
Petitioners Natural Resources Defense Council, Inc., ("NRDC") and the State of Vermont ("Vermont") (together, "petitioners") challenge those three exemptions from the Reporting Rule as unlawful agency action. As explained below, we find that the exemption for importers of products containing mercury-added components is an unlawful interpretation of the TSCA, because it lacks a reasoned explanation. We find that the exemption for manufacturers of products with mercury-added components and the exemption for high-volume manufacturers are lawful in light of Congress's directive to "not require reporting which is unnecessary or duplicative." 15 U.S.C. § 2607(a)(5)(A). We therefore GRANT REVIEW of and VACATE the exemption codified at 40 C.F.R. § 713.7(b)(2) and DENY REVIEW of the exemptions codified at 40 C.F.R. §§ 713.7(b)(3) and 713.9(a).
Mercury is a naturally occurring element. It is also a potent neurotoxin that does not degrade over time, making it both a significant public health threat and a danger to the environment. One way that mercury enters the environment is through the manufacture, use, and disposal of products that contain mercury. Mercury released through those processes converts biologically into methylmercury, the element's most toxic form, which bioaccumulates in wildlife. Methylmercury exposure in wildlife can cause death, reduced fertility, slowed development and growth, and abnormal behavior that affects survival. Human exposure occurs primarily from the ingestion of mercury through the consumption of fish and shellfish. Elevated methylmercury levels in the bloodstreams of young children and fetuses have been found to adversely affect cognitive development. Studies also suggest that mercury exposure
may affect humans’ reproductive, renal, cardiovascular, and hematologic health.
Mercury has long been used in a wide range of industrial processes and as an ingredient in many familiar products. Historically, mercury has been used in products including batteries within watches, toys, and cameras; paint; pesticides; cosmetics and skin care products; pharmaceuticals; vaccines; dental amalgam; fluorescent, neon, and ultraviolet lamps used in car headlights, street lights, neon signs, commercial lighting, and tanning beds; thermometers, blood pressure cuffs
, and other medical devices; and switches and relays used in pumps, appliances, and industrial machinery. Since 1980, largely due to increased awareness of the environmental and health dangers of mercury, the use of mercury-added products in the United States has decreased by over 97 percent. Nevertheless, mercury-added products including batteries, lamps, dental amalgam, and switches and relays continue to be sold extensively in the United States.
Since at least 2006, EPA has made the reduction of mercury-related risks an agency priority. The United States is a party to the Minamata Convention, an international agreement that seeks to protect human health and the environment from the effects of mercury contamination. State governments have also been instrumental to the reduction of mercury use nationwide, by enacting legislation that restricts the production and sale of mercury-added products, regulates their disposal, and implements labeling requirements. Thirteen states, including Vermont, have formed a coalition of state environmental agencies, the Interstate Mercury Education and Reduction Clearinghouse ("IMERC"), which manages an interstate reporting system for manufacturers and a related database of information on mercury use.
The TSCA authorizes EPA to regulate the use of "chemical substances and mixtures ... whose manufacture, processing, distribution in commerce, use, or disposal may present an unreasonable risk of injury to health or the environment." 15 U.S.C. § 2601(a)(2) ; see also id . § 2605(a). The statute directs EPA to promulgate rules requiring manufacturers and processors of chemical substances to maintain records of their use of such substances and report that information to EPA. See id . § 2607(a)(1)(A), (B).
In 2016, Congress enacted the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amended the TSCA by adding (among other things) specific directives with respect to mercury. Section 8(b)(10) of the amended TSCA provides that "[n]ot later than April 1, 2017, and every 3 years thereafter, the Administrator shall carry out and publish in the Federal Register an inventory of mercury supply, use, and trade in the United States." 15 U.S.C. § 2607(b)(10)(B). It directs EPA, in doing so, to "identify any manufacturing processes or products that intentionally add mercury" and to "recommend actions, including proposed revisions of Federal law or regulations, to achieve further reductions in mercury use." Id . § 2607(b)(10)(C).
The statute also includes a directive to manufacturers, calling on "any person who manufactures mercury or mercury-added products or otherwise intentionally uses mercury in a manufacturing process" to "make periodic reports to the Administrator, at such time and including such information as the Administrator shall determine by rule" in order "[t]o assist in the preparation of the inventory under subparagraph (B)." Id . § 2607(b)(10)(D)(i). The TSCA's definitions provision makes clear that the "manufacture" of a chemical substance includes manufacturing, producing, or "import[ing] [it] into the customs territory of the United States." Id . § 2602(9).
The statute directs EPA to "avoid duplication" by "coordinat[ing] the reporting under this subparagraph with [IMERC]." Id . § 2607(b)(10)(D)(ii). It further provides that, in carrying out this section of the TSCA, EPA "shall, to the extent feasible[,]" "not require reporting which is unnecessary or duplicative" and "minimize the cost of compliance with this section and the rules issued thereunder on small manufacturers and processors." Id . § 2607(a)(5), (A), (B).
In accordance with the amended TSCA's requirements, EPA published its initial inventory of mercury supply, use, and trade in 2017. Because EPA had not yet promulgated a rule that directed manufacturers to report mercury use for inclusion in the triennial inventory, its 2017 inventory drew exclusively on publicly available data, which EPA acknowledged was "notably limited in applicability to certain aspects of supply, use, and trade" and "in some cases [ ] outdated." J. App'x 440. For that reason, EPA concluded that it was "premature" to "identify any manufacturing processes or products that intentionally add mercury" or to "recommend actions ... to achieve further reductions," as required by the TSCA. Id . (quoting 15 U.S.C. § 2607(b)(10)(C) ).
On June 27, 2018, EPA published the Mercury...
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