Wednesday, December 27, 2017

A Community Voice v. U.S. EPA (9th Cir. - Dec. 27, 2017)

The California Court of Appeal is taking off the holidays, and hasn't published anything for a while.

But the Ninth Circuit remains hard at work.  It didn't publish anything yesterday, but it publishes a half-dozen opinions today.


This opinion is one of the six.  There's a neat little dispute -- or not-so-little -- between the majority and the dissent.  Here's how Judge Schroeder frames the opinion in her opinion for the panel:

"This case is about the hazards of lead paint in home environments that have been found by scientists to be more dangerous to childrens’ health than earlier supposed. It is an action in the form of an original petition for writ of mandamus to compel the Environmental Protection Agency (“EPA”) to act upon a rulemaking petition it granted eight years ago. The agency does not challenge the science supporting Petitioners’ concerns, but contends its only duty under the statute is to begin a rulemaking proceeding, and that it has no responsibility to make any decisions within a reasonable time or ever."

Well now.  You can tell by her tenor that she's not going to say that the EPA can't take forever to make a decision.  So she grants a writ of mandamus.  (Her reasoning in this regard is apparent from one of her concluding paragraphs, in which she writes:  "We must observe, however, that EPA has already taken eight years, wants to delay at least six more, and has disavowed any interest in working with Petitioners to develop an appropriate timeline through mediation. We are also mindful of the severe risks to children of lead-poisoning under EPA’s admittedly insufficient standards."  When you are dealing with the health of kids, you can see why the Ninth Circuit might not want to allow infinite amounts of administrative dithering.)

But Judge Smith, in dissent, disagrees.  He says that the EPA's under no duty.  Period.  So cut it out, he says, with the issuance of an extraordinary writ of mandamus.

(For the majority's part, Judge Schroeder responds:  "We also note that failing to find a duty would create a perverse incentive for the EPA. In our court’s most recent unreasonable delay case, we granted mandamus where the EPA had not responded to an administrative petition for rulemaking after eight years. See Pesticide Action Network N. Am. v. EPA, 798 F.3d 809 (9th Cir. 2015). The EPA distinguishes that case on the ground that here it has responded by granting this petition. Under the EPA’s view, were it not to respond to the petition at all, this court could grant mandamus and compel a time table for rulemaking, yet if EPA “grants” the petition it can then delay indefinitely, without any recourse to the Petitioners. This would allow the EPA to grant petitions for rulemaking and take no action in order to avoid judicial review. The dissent’s position that the EPA is under no duty to act leaves the agency unaccountable and our children unsafe.")

Nonetheless, there's one part of Judge Schroeder's opinion that I definitely find wanting.  On page 9, she says that 15 U.S.C. § 2618(a) permits the filing of a suit in "any Court of Appeals for a circuit where any petitioner resides or has its principle place of business," and notes that "[t]hree of the Petitioners . . . have their principle place of business in California."

Nope.  Section 2618 gets it right.  You can file in their principal place of business.

But, hey, it's the holidays, and the panel's working hard.  Feliz Navidad.