Does EPA Have a Non-discretionary Duty To Make a Statute Work?

If this Administration’s first year has taught us anything, it is that determining when EPA has an affirmative duty to act is going to be very important over the remaining 3 (or 7!) years of the Trump presidency.  That was the subject of last week’s decision in A Community Voice v. EPA, in which the 9th Circuit ordered EPA to issue a proposed rule updating its lead paint standards within 90 days, and a final rule within one year of issuance of the proposed rule.

Put simply, the case is a mess.  As Judge Smith noted in dissent, the majority tried to find a non-discretionary duty in the statute, but this was the best that it could do:

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. (“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.”); (“The regulations may be amended from time to time as necessary.”).

A careful reader might note that, while the initial promulgation of regulations was clearly mandatory, the majority’s own citation seems to suggest that EPA does not have any obligation to amend the regulations.

EPA did accept a petition for a rulemaking to lower the standards in 2009 – but without committing to do what the petitioners had asked.  More than eight years later, EPA still has not acted on the petition, notwithstanding that there appears to be no scientific dispute that the current standards are not sufficiently protective.  Moreover, without disagreeing with the scientific evidence, EPA told the court that it would be 2021 before a proposed rule might be issued and 2023 before a final rule might be issued.

This delay might fairly be described as unconscionable.  Indeed, if Administrator Pruitt wants to bring EPA back to its core mission, one might think that tightening lead standards would fit within that characterization.  (And, in fairness, the delay occurred during the Obama administration and the court papers in the appeal were filed under the Obama administration.)  Even Judge Smith felt compelled to note that he was not actually in favor of poisoning children:

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).

Although we may not like the actions of the agency, our jurisdiction is limited to determine whether the agency assumed a duty.

I think we’re going to see a lot more of these cases.  Scott Pruitt will look into his crystal ball and determine that some regulatory program he doesn’t like isn’t “core” to EPA’s mission.  He’ll avoid regulating wherever possible.  An NGO will bring a law suit to compel EPA action.  The science supporting regulation will be indisputable.

The only question will be whether the statutory basis for action cited by the NGO is sufficiently clear so as to give rise to a non-discretionary duty.  I wish I could be sanguine about the outcome.  I don’t think Judge Smith will be unique among appellate judges in his views on mandamus.

To be blunt, though, if enough judges act on similar views, people will be poisoned and people will die.

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