Ninth Circuit Grants Petition for Writ of Mandamus and Orders EPA to Promptly Begin a Rulemaking to Reduce the Risk of Lead Paint Poisoning

On December 27, 2017, the U.S. Court of Appeals for the Ninth Circuit granted a petition seeking a writ of mandamus to compel the Environmental Protection Agency (EPA) to promptly commence and conclude a long-promised rulemaking to consider reducing the existing household lead-dust levels that primarily affect children. Judge Schroeder determined that the Ninth Circuit has jurisdiction to consider this petition under both the Toxic Substances Control Act (TSCA) and the Administrative Procedures Act (APA), since EPA in October 2009 granted a petition to begin such proceedings. EPA has been ordered to issue a proposed rule within 90 days of the date this decision becomes final, and to promulgate a final rule within one year after the promulgation of the proposed rule. The case is In re A Community Voice, et al., v. EPA.

EPA argued that mandamus is unnecessary since it plans to issue a proposed rule in 2021, with a final rule being promulgated in 2023.

Judge Smith dissented, because, in his view of the law, neither statute compelled EPA to do anything more than what it has already done—to wit, accept the request and begin internal proceedings to respond to the petition. Judge Smith, in a footnote, remarked that he understands “the majority’s desire to find a duty for the EPA to act. I do not understand why the EPA has not acted. However, it is for Congress, not the courts, to mandate the EPA to achieve the goals set forth in [the law’s] ‘findings and purposes.’”