On December 27, 2017, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) ordered the U.S. Environmental Protection Agency (EPA) to revise its nearly 17-year-old standard for levels of lead in paint and dust within one year.  A Cmty. Voice v. EPA, No. 16-72816.  The Ninth Circuit held that “EPA was under a duty stemming from the Toxic Substances Control Act and the Residential Lead-Based Paint 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 decision stems from a petition filed in June 2016 by environmental and health groups seeking this action.  The order came in the form of a writ of mandamus, an unusual court order and extraordinary judicial remedy that requires an official or agency to perform a certain duty, in this case for EPA to issue a proposed rule within 90 days of this decision and to promulgate the final rule within a year of when the proposed rule is issued.  The court stated that in doing so, it was mindful of the Agency’s arguments that officials needed more time to deliberate a complex new standard.

Commentary

While not entirely surprising given the Circuit, the decision relies on a seldom used remedy that rarely succeeds in judicial settings.  It reflects the court’s sharp rebuff of the Administration’s apparent decision to delay action on the lead standard.  Given the many challenges EPA’s Office of Pollution Prevention and Toxics will face in the New Year, complying with the court’s order will not be easy.