Safer Chemicals, Healthy Families v. EPA, No. 17-72260 (9th Cir. 2019)Annotate this Case
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.