As a follow-up to my post last week about the 9th Circuit decision requiring EPA to propose new lead paint standards under TSCA within 90 days, I was encouraged to see Cass Sunstein support the decision in a BloombergView piece. Noting as I had the uphill battle plaintiffs face in these cases – and agreeing that they should in general face an uphill battle – Sunstein concisely summarized the issues:
In many contexts, it makes sense for agencies to refuse to regulate. And when agencies fail to act, courts are usually right to stand aside — and to defer to those who have political accountability and superior expertise.
But for the executive branch in 2018 and beyond, last week’s decision is a lesson, a warning and a promise: Some delays are unreasonable, and when human health is at stake, inaction may not be a legally acceptable option.
We must remember that EPA did not dispute the science here. EPA acknowledged that the current standards simply are not protective. Nonetheless, I doubt that this is a one-off. There will be other cases in which agencies refuse to regulate notwithstanding that regulation would seem to be called for by the governing statute, even if the statute has no deadlines for action.
In those cases, protection of public health – consistent with the statutory goals – seems to me a sufficient basis for the type of decision issued by the 9th Circuit.