ThinkProgress

EPA has 90 days to update lead regulations after activists score major victory in federal court

WHILE HE SEARCHES FOR A STICK TO REPAIR HIS TOY, A BOY HANDLES DIRT IN A NORTHWEST SANTA ANA NEIGHBORHOOD WHERE THINKPROGRESS FOUND ELEVATED LEVELS OF LEAD IN THE SOIL. CREDIT: DANIEL A. ANDERSON FOR THINKPROGRESS

A federal appeals court in San Francisco on Wednesday ordered the U.S. Environmental Protection Agency to swiftly update antiquated federal lead regulations, a major victory for advocates who charged that the agency had for years failed to make its standards stringent enough to protect children from the harmful neurotoxin.   

In mandating that the EPA move quickly to issue the new rules to strengthen outdated lead hazard standards, the court cited the agency’s own conclusion that “lead poisoning is the number one environmental health threat in the U.S. for children ages 6 and younger” and that the current standards are insufficient.

“The children exposed to lead poisoning due to the failure of EPA to act are severely prejudiced by EPA’s delay,” wrote Ninth Circuit Court of Appeals Judge Mary M. Schroeder, for the majority in the 2-to-1 decision.   

The regulations define the standards for what’s considered a dust-lead hazard and also what qualifies as lead-based paint, and in both cases, the EPA’s standards fall far short of protecting human health, according to Earthjustice, the environmental law organization that filed the lawsuit last year against the EPA on behalf of eight organizations across the country.   

Earthjustice litigator Eve Gartner, one of the attorneys who represented the organizations in the lawsuit, described the ruling as a critical piece of the puzzle for protecting children from levels of lead that will damage the development of their brains. Gartner oversees efforts to protect people from toxic chemicals as part of Earthjustice’s Healthy Communities Program.

“Hundreds of thousands of children in this country have elevated blood lead levels, and are suffering the consequences in lost IQ points, and lost ability to fulfill their potential,” wrote Gartner in an email to ThinkProgress. “Changing the hazard standard is a critical first step to protecting children from devastating lead exposures from the lead paint that is still pervasive in older housing across the country, but especially in the Northeast.”

The decision has wide implications because federal agencies such as the Department of Housing and Urban Development as well as states and cities across the country defer to the EPA standards when setting their own lead regulations and policies.

Nationally, blood lead concentrations in U.S. children have dropped dramatically over the past three decades, but lead continues to plague communities across the country. There are about half a million young children in the United States with blood lead levels above five micrograms per deciliter, the level at which the Centers for Disease Control and Prevention recommends public health intervention. 

A 2-YEAR-OLD GIRL PLAYS IN HER FRONT YARD IN NORTHWEST SANTA ANA WHERE THINKPROGRESS FOUND HAZARDOUS LEVELS OF LEAD IN THE SOIL. YOUNG CHILDREN ARE ESPECIALLY VULNERABLE TO LEAD BECAUSE OF THE TOXIN’S IMPACT ON THE DEVELOPING BRAIN. CREDIT: DANIEL A. ANDERSON FOR THINKPROGRESS

Under the Obama administration, after a citizen petition sent to the EPA administrator in 2009 asking the agency to make the standards more stringent, the EPA took some steps to examine the standards. The agency established a review panel to examine the standards process, reviewed scientific research, and conducted a housing survey, according to the court decision.  

Still, as children continued to be exposed to lead hazards across the country, the standards, which had not been updated since 2001, remained unchanged. The EPA, under the Trump administration, had asked for an additional six years to consider whether it would update the standards by 2023.

“The court has given children around the country a huge Christmas gift by ordering EPA to quickly adopt a new standard for what constitutes a ‘dust lead hazard,’” wrote Gartner. “There is no dispute that EPA’s current hazard standard is obsolete.  But EPA told the court that it could not fix the problem until 2023 at the earliest.  The Court appropriately told the EPA that this absurdly long delay in protecting children from lead is unacceptable.”

The court ordered the EPA to propose a new rule within 90 days of the Dec. 27 decision, and a final rule one year after that. The updated EPA standards will apply to all types of housing, including rental properties, privately owned homes, and federally assisted housing.

An EPA spokesman told the New York Times that the agency is reviewing the court’s decision, but declined to say if the agency planned to appeal the ruling.

Researchers have found elevated blood lead levels can lead to increased aggression, lack of impulse control, hyperactivity, inability to focus, inattention, and delinquent behaviors. And as more scientific evidence emerges on the neurotoxic effects of lead on the developing brain, experts have emphasized that prevention is the key to eliminating the threat of lead exposure.

“How many children developed lead poisoning due to EPA’s years of inaction? The courts, environmental justice advocates, and parents are sending a clear directive: the EPA must comply with its obligation to protect the health of Americans, especially children,” wrote attorney Emily Benfer, a Yale Law School Distinguished Visiting Scholar and Senior Fellow, in an email to ThinkProgress.

Benfer has spent half a dozen years working in collaboration with health providers, legal aid workers, and law students to help low-income families battle toxic living conditions in lead-contaminated Illinois neighborhoods. After President Donald Trump took office, she and other legal experts across the country worried that his promises to deregulate government agencies would impact efforts to strengthen lead standards.

Benfer was particularly concerned that the EPA might relax lead dust standards, even though scientific research has shown that the current standards are not effective at protecting children from lead exposure. The standards establish the levels at which lead dust inside a home pose a risk, whether this is dust via lead-based paint, contaminated soil tracked into the home or other sources.

The American Academy of Pediatrics described the regulations as “obsolete” last year in a report on preventing childhood lead toxicity. The academy also noted one study that found that under the EPA’s current floor hazard standards for lead dust measured after abatement work is completed, 50 percent of children were estimated to have a blood lead level of 5 micrograms per deciliter or higher.

“In other words, at the current dust-lead hazard standards, half of children in families informed that their home does not contain a dust-lead hazard would nevertheless develop elevated blood lead levels,” Earthjustice stated in its lawsuit against the EPA.

Environmental Protection Agency Administrator Scott Pruitt speaks at an April 2017 news conference in East Chicago, Indiana following a tour of a public housing complex where roughly 1,000 people were ordered evacuated because of lead contamination. CREDIT: AP Photo/Teresa Crawford

By failing to properly identify lead hazards in housing, and failing to enforce consistent standards across government agencies, the federal government allowed children to continue to be the “canary in the coal mine,” said Benfer.

“This case is not about the danger posed by the antiquated standards. The EPA, [and other federal agencies and] advocates all agree that the standards place children in danger of lead poisoning and must to be updated…,” wrote Benfer.  “The only issue in this case is whether [EPA] Secretary [Scott] Pruitt will continue to delay the protection of millions of children and families across the United States or will he finally fulfill his duty to protect health of the most vulnerable Americans, our children.”