The recent U.S. Supreme Court decision on June 28 to end judicial deference to agencies’ reasonable interpretations of laws could have significant implications for the Environmental Protection Agency’s ongoing efforts to regulate per- and polyfluoroalkyl substances (PFAS), also known as “forever chemicals.” This decision comes at a crucial time as the EPA develops its PFAS strategic roadmap, which outlines numerous planned actions, including new regulations. These regulations are currently in various stages of the rulemaking process.
The EPA’s move to designate two PFAS as hazardous substances under the Superfund law (CERCLA) is already facing a judicial challenge in the U.S. Court of Appeals for the DC Circuit. This is the first instance where the EPA has leveraged Section 102(a) of CERCLA, which allows the agency to classify substances as hazardous if they “may present substantial danger to the public health or welfare or the environment” when released.
The challenge contends that the EPA did not provide adequate explanation for the “substantial danger” standard and failed to account for costs, issues that were typically shielded under the now-overturned Chevron v. NRDC deference. Without Chevron deference, courts could entertain multiple reasonable interpretations of what constitutes a “substantial danger,” potentially undermining the EPA’s regulatory efforts.
The Supreme Court’s ruling in Loper Bright v. Raimondo means that agencies must closely adhere to the statutory language in their rulemaking processes. This is particularly relevant as the EPA attempts to address PFAS issues using older statutory provisions. Regulatory implementation could become irregular and uncertain as a result of expected judicial challenges.
The majority opinion in Loper Bright also revived principles from Skidmore v. Swift & Co. Agencies might now need to allocate more resources to predict alternative reasonable interpretations and justify their positions to meet the Skidmore deference standard.
As the EPA continues its efforts to regulate PFAS, the implications of this Supreme Court decision will play a pivotal role in how these regulations are both drafted and contested.
For further details, you can read the original article on Bloomberg Law.