Safer Chemicals, Healthy Families v. EPA, No. 17-72260 (9th Cir. 2019)
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Petitioners sought review of the EPA's Risk Evaluation Rule establishing a process to evaluate the health and environmental risks of chemical substances. The Rule was promulgated by the EPA under the Toxic Substances Control Act (TSCA).
The Ninth Circuit held that it lacked jurisdiction to review petitioners' challenge to provisions of the Rule relating to the process by which EPA will conduct risk determinations. The panel explained that the challenge was not justiciable where petitioners' interpretation of what EPA intended to do and the resulting theory of injury were too speculative. In regard to petitioners' contention that the Rule contravenes TSCA's requirement that EPA consider all of a chemical's conditions of use when conducting a risk evaluation, the panel held that the challenged preambular language was not final agency action and not reviewable under the Administrative Procedure Act. The panel held that challenges to specific provisions of the Rule were justiciable, but they failed on the merits because the provisions that petitioners point to did not in fact assert discretion to exclude conditions of use from evaluation. Finally, the panel held that EPA's exclusion of legacy uses and associated disposals contradicted TSCA's plain language, but that EPA's exclusion of legacy disposals did not. Accordingly, the panel dismissed in part, granted in part, and denied in part.
Court Description: Environmental Law. The panel dismissed in part, granted in part, and denied in part petitions for review brought by a variety of environmental groups and other organizations, seeking review of a rule promulgated by the United States Environmental Protection Agency (“EPA”) establishing a process to evaluate the health and environmental risks of chemical substances. The EPA promulgated the Risk Evaluation Rule pursuant to the Toxic Substances Control Act (“TSCA”). Petitioners argued that TSCA required EPA to evaluate risks from uses of a chemical substance collectively, and that the Risk Evaluation Rule contradicted this mandate. The panel held that this challenge was not justiciable because petitioners’ interpretation of what the EPA intended to do and petitioners’ resulting theory of injury were too speculative. The panel further held that because petitioners’ theory of injury was dependent upon harm caused by a failure to assess all conditions of use together, and because it was very uncertain whether EPA ever planned to do what petitioners feared, petitioners’ alleged injury was too speculative at this time to establish Article III jurisdiction. Petitioners also argued that the Risk Evaluation Rule expressed an impermissible intent to exclude some SAFER CHEMICALS, HEALTHY FAMILIES V. USEPA 11 conditions of use from the scope of a risk evaluation, thereby contravening TSCA’s requirement that EPA consider all of a chemical’s conditions of use. With respect to petitioners’ challenge to language in the preamble to the Risk Evaluation Rule, the panel held that it was not final agency action, and thus not reviewable under the Administrative Procedure Act. With respect to petitioners’ challenges to specific provisions of the Risk Evaluation Rule, the panel held that the challenges were justiciable final agency action. The panel further held that petitioners had standing to challenge these provisions, and that the challenge was ripe. The panel concluded that the Rule’s scope provisions failed on the merits because the challenged provisions did not in fact assert discretion to exclude conditions of use from evaluation. Finally, petitioners challenged EPA’s categorical exclusion of legacy activities from the definition of “conditions of use.” The panel held that this claim was justiciable. Turning to the merits, the panel held that EPA’s exclusion of legacy uses and associated disposals contradicted TSCA’s plain language, but that EPA’s exclusion of legacy disposals did not.
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