In a case that could have far reaching implications for agencies subject to the Regulatory Flexibility Act, the D.C. Circuit Court last month held that an EPA decision not to convene a small business advocacy review panel before issuing a rule was not judicially reviewable.  The decision by Judge Merrick Garland, for a unanimous 3-judge panel, was in National Association of Home Builders (NAHB) v. EPA.

NAHB challenged the EPA’s change of course on an “opt-out” provision of a rule established under the Residential Lead-Based Paint Hazard Reduction Act.  With the goal of protecting thousands of children from lead poisoning associated with older homes, the rule mandated that renovators of housing built before 1978 take certain steps to mitigate the dangers from lead paint.  The opt-out provision would allow an owner-occupant of housing without children under the age of six or pregnant women to waive protections afforded by the rule.  Two years after first creating the opt-out provision, the EPA, hearing criticism from environmental health advocates, reconsidered the harm the opt-out could cause to children and pregnant women, and chose to rescind it.  The agency did so relying solely on the evidence that was available when the opt-out …