5th Circuit curbs EPA authority under chemical safety law

By Ellie Borst | 03/22/2024 01:38 PM EDT

At issue are agency orders to plastics fluorination company Inhance Technologies to halt “forever chemicals” production.

Illustration with plastic bottles and PFAS compounds.

Plastics company Inhance Technologies uses a controversial fluorination process that unintentionally creates PFAS on up to 200 million plastic barrels each year. Claudine Hellmuth/POLITICO (illustration); National Academies Press (chemical compounds); Fertnig/iStock (pesticide bottles); Freepik (green bottle)

EPA used the wrong process when it ordered a plastics company to stop unintentionally creating “forever chemicals,” the 5th U.S. Circuit Court of Appeals wrote in a Thursday opinion.

The unanimous three-judge panel reined in the agency’s authority on chemical uses by vacating EPA’s December orders to Inhance Technologies. The word “new” in the order “defies common sense,” the ruling says.

In December, EPA attempted to reduce major sources of widespread PFAS contamination by ordering a stop to Inhance’s fluorination process, which makes the insides of plastic barrels more durable, until the company could figure out how to stop making the most dangerous per- and polyfluoroalkyl substances as unintentional byproducts.


It was the first time the agency flexed this type of authority under the 2016 amendments to the Toxic Substances Control Act.