For 2018, and the remainder of Donald Trump’s presidency, that raises an urgent question: Will courts ever intervene and require agencies to act?
Last week, one federal court gave a resounding answer: Yes.
By a majority of 2-1, the U.S. Court of Appeals for the Ninth Circuit required the Environmental Protection Agency to issue a new regulation to reduce health risks associated with exposure to lead paint. The court went so far as to impose a timetable on the agency: The EPA must propose a rule for public comments within 90 days and finalize it within a year. (A rule becomes law once it is made final.)
While acknowledging that its current lead-paint standard was insufficient, the agency had asked for four years to propose a new rule and six years to finalize it. In response, the court said that the Toxic Substances Control Act, as amended by the Residential Lead-Based Paint Hazard Reduction Act, requires the EPA to update its regulations so as to protect children from serious health risks, consistent with new scientific information.
To appreciate the significance of last week's decision, it is necessary to emphasize that courts are usually reluctant to compel the executive branch to act. Their reluctance makes sense. Any president must set priorities, meaning that in some areas he will order his agencies to stay their hand.
On occasion, environmental organizations, labor unions and consumer groups will be unhappy and even appalled. True, Republican administrations are more likely to show regulatory restraint than Democratic administrations. But even under Presidents Bill Clinton and Barack Obama, public-interest organizations frequently took their objections to court.
Usually they lose. That is mostly because in 1985 the Supreme Court ruled that agency inaction is presumed to be “unreviewable” -- meaning the courts cannot get involved. The justices emphasized that agencies, just like criminal prosecutors, have limited budgets and numerous potential targets. Courts are not in a good position to decide whether agencies have chosen the right priorities.
At the same time, the Supreme Court recognized that Congress has the final say: It is entitled to require the executive branch to act. If Congress explicitly directs the Department of Transportation to issue new fuel-economy standards in 2018, the department is not allowed to ignore that requirement. If it does, courts can require it to obey the law.
That’s an important principle, and sometimes it matters, but in most cases it turns out to be irrelevant. Congress does not usually impose deadlines -- which means that any president’s agencies, including Trump’s, seem licensed to sit on their hands.
With respect to lead paint, Congress has given no deadlines to the EPA. For that reason, the appeals court was required to invoke a widely ignored provision of the 1946 Administrative Procedure Act, which directs judges to compel agency action that has been “unreasonably delayed.”
The court emphasized that a delay would be more likely to be found unreasonable if human health was at stake. Because the EPA itself acknowledged that the current standard is inadequate to protect the health of young children, any significant delay would present “a clear threat to human welfare,” the court said. By asking for a delay of years, rather than months, the agency greatly weakened its position and claim to be acting reasonably.
True, the court's decision was not unanimous, and we cannot rule out the possibility that the Supreme Court would side with Judge N. Randy Smith, who dissented on the ground that Congress had not tied the agency’s hands. But because the majority did not depart from established law, that’s unlikely.
In light of the risk of lead poisoning, the court’s decision is important in itself. But it is more significant still as a signal that legal challenges to agency inaction may succeed, especially when health and safety are involved.
In many contexts, it makes sense for agencies to refuse to regulate. And when agencies fail to act, courts are usually right to stand aside -- and to defer to those who have political accountability and superior expertise.
But for the executive branch in 2018 and beyond, last week’s decision is a lesson, a warning and a promise: Some delays are unreasonable, and when human health is at stake, inaction may not be a legally acceptable option.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Cass R. Sunstein is a Bloomberg View columnist. He is the author of “#Republic: Divided Democracy in the Age of Social Media” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
To contact the author of this story: Cass R Sunstein at csunstein1@bloomberg.net.
To contact the editor responsible for this story: Katy Roberts at kroberts29@bloomberg.net.
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