Does EPA Have a Mandatory or Discretionary Duty to Issue an Endangerment Finding for Lead in Aviation Gasoline?
This blog has discussed the regulation of lead in aviation gasoline extensively. Due to the fact that the general aviation industry is the last remaining industry to use leaded fuel, aviation gasoline has become a focal point of discussion at the Environmental Protection Agency, in the general aviation industry, and amongst environmental NGOs. Below are some of the past posts regarding lead in aviation gasoline:
- Rep. Henry Waxman Urges FAA to Immediately Address Lead in Aviation Gasoline
- Industry-Government Task Force Report Sheds Light on Future of Aviation Gasoline
- Environmental Advocacy Group Sues EPA to Regulate Emissions from Aviation Gasoline
- EPA Sets Its Regulatory Cross Hairs on Leaded Aviation Fuel
- EPA Begins Rulemaking Process to Address Lead in Aviation Gasoline
In the pending case, Friends of the Earth v. EPA, D.D.C., No. 12-363, the plaintiff environmental group is pushing EPA to issue a finding that leaded aviation gasoline endangers human health and the environment. Such a finding would require the agency to regulate lead. During a hearing last week on EPA’s motion for summary judgment, Judge Amy Berman Jackson told the parties that the question before the court was whether EPA has a mandatory or discretionary duty to make such a finding. Only if the agency has a mandatory duty could the court compel EPA to take action. Each side points to specific language in the Clean Air Act to argue that the agency does or does not have discretion.
Before this lawsuit, Friends of the Earth filed an administrative petition seeking to compel EPA to make the endangerment finding. Only after EPA denied the petition last year did the environmental group bring the suit. In denying the petition, EPA stated that it needed additional time to study lead emissions in the general aviation industry (petition denial can be found on EPA’s website here). Battling a limited amount of monitoring data to make its evaluation, EPA has been working to develop a robust model that can characterize the amount of lead in the ambient air at and around airports where piston-engine aircraft operate.
The industry is closely following this case and issue. So will this blog. Please check back for updates.