A Community Voice v. EPA, No. 16-72816 (9th Cir. 2017)
Annotate this CaseThe Ninth Circuit granted a petition for writ of mandamus in an action filed by environmental groups seeking to compel the EPA to act upon a rulemaking petition it granted eight years ago concerning dust-lead hazard and lead-paint standards. The panel held that the EPA had a duty to act under the Toxic Substances Control Act (TSCA) and the amendments to it from the Paint Hazard Act, as well as the Administrative Procedure Act (APA). Furthermore, the TRAC factors (Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 75 (D.C. Cir. 1984)) favor issuance of the writ in this case. The panel ordered that the EPA issue a proposed rule within ninety days of the date that this decision becomes final; EPA promulgate the final rule within one year after the promulgation of the proposed rule; and the deadlines for both the proposed rule and the final rule will only be modified if EPA presents new information showing modification is required.
Court Description: Mandamus / Environmental Protection Agency. The panel granted a petition for writ of mandamus brought by environmental groups seeking to compel the United States Environmental Protection Act (“EPA”) to act upon a rulemaking petition it granted years ago concerning dust-lead hazard and lead-paint standards. The panel held that it had jurisdiction to consider the mandamus petition because three of the petitioners were California residents, and they challenged a final EPA rule. The panel held that the EPA was under a duty stemming from the Toxic Substances Control Act and the Residential Lead-Based Pain Hazard Reduction Act of 1992 to update lead-based paint and dust-lead hazard standards in light of the obvious need, and a duty under the Administrative Procedure Act to fully respond to petitioners’ rulemaking petition. The panel held that in cases seeking mandamus, the issue of whether the agency unreasonably delayed is evaluated under the factors outlined in Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 75 (D.C. Cir. 1984) (“TRAC”). The panel held that the clear balance of the TRAC factors favored issuance of the writ. The panel further held that D.C. Circuit cases buttressed this conclusion. The panel, accordingly, granted the petition for a writ of mandamus. 4 IN RE A COMMUNITY VOICE The panel turned to the question of the contents of the writ. The panel ordered (1) that EPA issue a proposed rule within ninety days of the date that this decision became final; (2) that EPA promulgate the final rule within one year after the promulgation of the proposed rule; and (3) that the deadlines for both the proposed rule and final rule would only be modified if EPA presented new information showing modification was required. The court retained jurisdiction for purposes of ensuring compliance until EPA issued a final order subject to judicial review. Judge N. R. Smith dissented because he would hold that neither the Toxic Substances Control Act and the amendments in the Paint Hazard Act nor the Administrative Procedures Act mandated the EPA to act, and the majority therefore improperly granted a writ of mandamus.
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