National Federation of Independent Business v. Environmental Protection Agency

Summary: In January 2005, cross motions for summary judgment in this case were submitted to the United States District Court for the District of Columbia. Representing NFIB, we challenged a new lead reporting rule promulgated by the EPA. The rule drastically lowered the threshold for reporting the presence of lead, imposing significant new burdens on many small businesses with minimal throughput of lead-based products. We argued that, before adopting this rule, the EPA did not conduct an appropriate "small business impact" study, and further its new threshold was not based on sound science.

One year later, the District Court granted the EPA’s motion for summary judgment. This was a disappointing result, because the court appears not to have evaluated the scientific merits of judging hazard levels through an inappropriate methodology. The EPA lowered its lead threshold after deciding that lead is bioaccumulative. It continues to insist on that decision, which was made purely on the basis of generally increased blood lead levels, without measuring in a scientific manner the bioaccumulative properties of the element itself. In effect, the court has sent a signal to government agencies that very lenient standards will be applied to "agency science," with the end result being the improper acceptance of of inaccurate science as a sufficient justification for alerting the public not to actual hazard, but to the mere possibility of hazard. This can impose unnecessary and unproductive regulatory burdens, especially on Americas small businesses, which employ 58% of Americas nonfarm workers.