Tozzi v. U.S. Dept. of Health & Human Services
ELR Citation: ELR 20335 No(s). 00-5364 (D.C. Cir. Nov 23, 2001)
The court holds that the Secretary of the Department of Health and Human Services (HHS) did not act arbitrarily or capriciously in upgrading dioxin from the list of "reasonably anticipated" human carcinogens to the list of "known" human carcinogens. The upgrade was set forth in the HHS' Ninth Report on Carcinogens. The court first holds that a manufacturer of products that release dioxin when incinerated had standing to bring suit challenging the Secretary's actions. The manufacturer showed injury resulting from the new characterization of dioxin by proving that it would experience reduced profits. The manufacturer also showed that the reduction in profits would be fairly traceable to the dioxin upgrade and that this injury is redressable by a reclassification of dioxin. The court also holds that the dioxin upgrade is reviewable. Although the report's preamble states that it is for informational purposes only, the listing has binding effect. Listing a substance as a human carcinogen triggers obligations under other statutes. Moreover, although the report was not published in the Federal Register, the Secretary published a notice proposing a dioxin upgrade and, once finalized, a summary of the decision. As for the merits, the court holds that the Secretary did not err in relying on mechanistic rather than epidemiological evidence in upgrading dioxin. The court then holds that the HHS' interpretation of the listing criteria as allowing mechanical evidence to be applied to both the "reasonably anticipated" and the "known" categories is entitled to deference.
Counsel for Appellants
Terry F. Quill
Duane Morris
1667 K St. NW, Ste. 700, Washington DC 20006
(202) 776-7800
Counsel for Appellees
Peter D. Blumberg, Ass't U.S. Attorney
U.S. Attorney's Office
5806 Judiciary Center Bldg.
555 4th St. NW, Washington DC 20001
(202) 514-7566
Tatel, J. Before Silberman, J., concurring, and Williams,* J.
* Senior Circuit Judge Williams was in regular active service at the time of oral argument.