Ninth Circuit orders EPA to propose a new standard for lead dust and an updated definition for lead paint.
The U.S. Consumer Product Safety Commission ordered the removal of lead from house paint in 1978. Yet four decades later, young children continue to be exposed to lead that remains in homes built before the ban. Peeling paint, crumbling walls, and minor renovations can scatter lead around a home, causing serious and irreversible developmental effects in children.
According to a recent decision from the U.S. Court of Appeals for the Ninth Circuit, the U.S. Environmental Protection Agency (EPA) must reevaluate the risks from lead-based paint. The court ordered EPA to issue a proposed rule that sets revised hazard standards for household dust that contains lead and a modified definition of lead-based paint. The agency must further issue a final rule within a year of the proposed rule.
The court’s decision came in a lawsuit filed by a coalition of environmental and community organizations seeking to challenge EPA’s failure to set more stringent dust-lead hazard standards and update the agency’s existing definition of lead-based paint. Emphasizing the dangers of childhood lead exposure, the challengers argued that EPA “unreasonably delayed” its fulfillment of its duty to address these risks. In light of the eight-year delay between the challengers’ original petition to EPA and the lawsuit they filed, the challengers requested that the court order EPA to begin a rulemaking.
In a 2-1 decision, the Ninth Circuit agreed with the challengers, holding that EPA has a duty to act and that the agency’s failure to act constituted an unreasonable delay.
Although EPA set a hazard standard for lead-contaminated dust in 2001, the challengers noted that the agency has not updated these standards despite new research indicating that there is no level at which lead exposure is safe for young children. Additionally, the challengers argued that EPA has failed to revisit an outdated technical definition of lead-based paint in the Toxic Substances Control Act that remains well above currently accepted thresholds.
The court also held that EPA has an ongoing duty to identify lead-based hazards and amend regulations as needed under the Toxic Substances Control Act and its amendments contained in the Paint Hazard Act. Citing these statutes, the majority noted that the EPA Administrator is required to “promulgate regulations which shall identify…lead-based paint hazards, lead-contaminated dust, and lead-contaminated soil” and that these regulations “may be amended from time to time as necessary.”
Additionally, the court found that EPA has a duty under the Administrative Procedure Act (APA) to conclude regulatory proceedings “within a reasonable time.” The court rejected EPA’s argument that the agency fulfilled its duty under the APA by simply deciding to “begin a proceeding.” It observed that EPA specifically granted a petition for a rulemaking—so it needed to complete the making of a rule.
Moreover, the court noted that failing to find a duty could create a “perverse incentive” for EPA because it would allow the agency to grant a petition and then choose to take no action. This type of indefinite delay, according to the majority, would allow the agency to skirt judicial review.
The court further held that EPA unreasonably delayed by not taking final action on the dust-lead hazard standards and its revised definition of lead-based paint. A delay of eight years, combined with the clear threat to children’s health, and congressional intent to eliminate the threat of lead poisoning, weighed in favor of a finding that EPA’s delay was unreasonable.
EPA estimated that it could propose a rule by 2021 and issue a final rule by 2023, but the majority dismissed these timeframes as being “speculative.”
The dissenting judge in the case disputed the majority’s conclusion that EPA has a clear duty to act under the Toxic Substances Control Act and the APA. That judge argued that any obligation on the agency to update the standards was, in fact, discretionary. In the absence of a clear duty, the court lacked the authority to order EPA to take any regulatory action, the dissent argued.
Noting that it was difficult to understand EPA’s inaction thus far, the dissent concluded that nonetheless, “it is for Congress, not the courts, to mandate the EPA achieve the goals” set forth in the Toxic Substances Control Act.
The court’s decision marked a victory for the challengers and the beginning of a tight deadline for EPA. Since then, however, the court has granted EPA an extension until June 26 to propose the new hazard standard and definition of lead-based paint. Despite the extended timeline, Administrator Scott Pruitt has said that reducing lead exposure is a top EPA priority.
Eve Gartner, one of the Earthjustice attorneys who argued the case, has reportedly stated that EPA has “been studying this since 2010 by their own accounts” and, at this point, “we just need to act.”
