In a late December split decision, In Re A Cmty. Voice, et al. v. U.S. Envtl. Prot. Agency, the U.S. Court of Appeals for the Ninth Circuit sharply expanded an agency’s responsibilities under APA § 555(b), which requires that “within a reasonable time, each agency shall proceed to conclude a matter presented to it.” The court also implicitly limited an agency’s latitude in responding to an APA rulemaking petition. See 5. U.S.C. § 553(e) (“Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.”). If it stands, the court’s ruling would render a significant change to administrative law within the circuit by establishing that these two APA provisions impose a non-discretionary duty to timely complete a rulemaking whenever an agency grants a rulemaking petition— even if the agency’s response did not commit to a rulemaking and, more importantly, if the requested rule is wholly discretionary under the agency’s enabling statute.

In 2009, various public interest groups filed a petition requesting that EPA exercise its authority under the Toxic Substances and Control Act to update lead-dust standards. See §15 U.S.C. §2687 (“[Lead-dust] regulations may be amended from time to time as necessary.”). A few months later, EPA granted the petition under APA § 553(e). An accompanying agency letter acknowledged that “the current [lead-dust] standards may not be sufficiently protective” and further expressed the agency’s intent “to begin an appropriate proceeding,” without promising any given result or establishing any deadline for action. After seven years of investigation, EPA had yet to initiate a rule, and the public interest groups filed before the Ninth Circuit an original petition for writ of mandamus to compel the EPA to update the regulation. On December 27^th, the court granted the petition and ordered EPA to propose and finalize a lead-dust rule within a year.

Of course, mandamus is an extraordinary remedy whose availability depends on a “specific, unequivocal command.” ICC v. New York, N. H. & H. R. Co., 287 U.S. 178, 204 (1932). Relying on non-binding congressional “findings” and “purposes,” the court concluded that TSCA § 2687 imposed such a clear-cut duty, despite the permissive statutory language (the EPA “may” regulate from “time to time”). Setting aside the court’s bold interpretation of EPA’s enabling statute, the panel majority also issued an alternative holding that identified an independent and “clear” duty to complete the rulemaking under the APA:

Even if we could conclude the EPA had no duty to at act under the [agency’s enabling statute], the EPA has a clear duty to act under the APA. The APA requires agencies to “conclude a matter presented to it” “within a reasonable amount of time.” 5 U.S.C. § 555(b) … Having chosen to grant the petition for rulemaking, EPA came under a duty to conclude a rulemaking proceeding within a reasonable time.

For its part, EPA had argued that it agreed only to initiate an “appropriate proceeding” in granting the public interest groups’ rulemaking petition, and this commitment does not necessarily entail a rulemaking. But the court was unpersuaded:

In EPA’s view, [beginning an appropriate proceeding] is the only commitment to the Petitioners the agency made when it granted the August 2009 petition. The 2009 petition, however, did not petition the EPA to begin a proceeding; it petitioned EPA to engage in a rulemaking to lower the lead standards … EPA granted this petition for a rulemaking …. Under these circumstances, there is a clear duty to act.

There are two significant APA interpretations in the court’s holding. Implicitly, the court constructs APA § 555(e) to allow an agency only two options in the face of a rulemaking petition: 1) deny; or 2) grant the petition and initiate a rulemaking. That is, there is no room for positive action that falls short of a rulemaking, such as an “appropriate proceeding,” non-binding guidance, or the pursuit of voluntary compliance.

And whereas the court never actually mentions § 553(e), the split panel expressly interpreted APA § 555(b) to require the timely completion of a rulemaking upon granting a petition—even if the requested rule is entirely discretionary.

To my eyes, it’s far from certain whether APA §§ 553(e) and 555(b) together create a “clear” agency-forcing duty that strips EPA of discretion over the timing and nature of its response to a petition for a discretionary rulemaking. Other than § 555(e), which requires an agency to provide “prompt” notice and a “brief statement” of reasons when it denes a petition for rulemaking, nothing in the APA conditions how an agency can respond to a petition in the affirmative.

As for § 555(b)’s call for timeliness, the Attorney General’s Manual on the Administrative Procedure Act states that “[t]his provision merely restates a principle of good administration,” which does little to suggest a ministerial duty of the sort that is amenable to mandamus.

The court cites five cases in support of its contention that the APA creates a clear duty for an agency to timely complete a rulemaking upon granting a petition for a discretionary action. However, in none of the five cases did these APA provisions, per se, engender a duty of the sort that warrants a mandamus writ ordering an agency to complete a rulemaking. Instead, the courts either: found that the agency had triggered a duty to complete a rulemaking by committing to regulate in light of an affirmative responsibility within their enabling statutes; or determined that an agency had a duty to respond to a petition provided for by statute or the agency’s rules. Nowhere in these precedents did the APA establish an independent legal responsibility for an agency to timely complete a rulemaking after granting a petition for a discretionary regulation.

In addition to what I believe is tenuous legal reasoning, the court also set forth a policy justification for its APA holding. Absent its finding that the APA confers a duty to complete a rulemaking, the court warned that an agency may otherwise grant a petition and “then delay indefinitely” and thereby “take no action in order to avoid judicial review.” The court’s point is well-taken in theory, but it fails to comport with the facts at hand. Over the last 7 years, EPA has endeavored to investigate whether an updated lead-dust rule is necessary, including: convening a Science Advisory Board panel, performing a literature review, and collaborating with the Department of Housing and Urban Development to identify best practices for mitigating lead-dust hazards. It’s simply untrue for the court to insinuate that the agency has taken “no action.”

Furthermore, the court fails to consider the policy rationales that work against the court’s decision. For example, under the Ninth Circuit’s holding, an administration could wait until its lame duck to grant rulemaking petitions, with the intention of binding their successors.

More troublingly, the court’s decision upsets an agency’s ability to order its priorities. As noted by the D.C. Circuit, “virtually the entire docket of the [EPA] involves” public health issues, and “whether the public health and welfare will benefit or suffer from accelerating [a] particular rulemaking depends crucially upon the competing priorities that consume EPA’s time, since any acceleration here may come at the expense of delay of EPA action elsewhere.” Sierra Club v. Thomas, 828 F.2d 783, 798 (1975). In fact, the EPA faces myriad date-certain duties prescribed by Congress, in addition to thousands of other non-date-certain duties. If courts hold that APA §§ 553(e) and 555(b) require EPA to timely complete rulemakings upon the granting of a petition for a discretionary rule, then the agency’s performance of its non-discretionary duties—as stipulated by Congress—will suffer.

William Yeatman is a senior fellow at the Competitive Enterprise Institute, a libertarian think tank in Washington, D.C., that focuses on the administrative state. He may be reached at wyeatman@cei.org.