Judges appeared ready to back EPA’s decision to designate two “forever chemicals” as hazardous under the federal Superfund law, keeping polluters on the hook for cleanups.
During oral arguments in the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday, the three-judge panel weighed arguments that EPA didn’t do enough to consider the costs the rule would impose on businesses.
That rule, one of the few Biden-era rules the Trump administration has said it will defend, adds PFOA and PFOS — two of the most-studied chemicals in the PFAS, or per- and polyfluoroalkyl substances, family — to its list of “hazardous substances” under the Superfund law.
“The only question before us is could they [EPA] permissibly designate these chemicals as hazardous. And, they look at the science, and you haven’t contested any of this,” said Judge Gregory Katsas, a Trump appointee.
EPA concluded exposure to PFOA and PFOS was linked to increased risk of various cancers, liver damage, birth defects, immunosuppression and many other serious adverse health impacts.
“It just seems like that’s a categorically rational decision on the threshold question whether to designate or not,” Katsas said.
Elbert Lin, partner at the firm Hunton Andrews Kurth representing a coalition of industry groups led by the U.S. Chamber of Commerce, presented the case regarding “an internal inconsistency in how you treat costs and benefits” pertaining to the rule.
EPA during the rulemaking process estimated polluters may pay upwards of $18 million “in additional cleanup expenditures” per year.
“The problem here is with the way EPA did its analysis,” Lin said. “The point is that the EPA has decided that $18 million of new costs will be treated solely as benefits. That is a big conceptual swing, no matter what that number is.”
Judge Patricia Millett, an Obama appointee, contested that the number does matter.
“You have to show that it was going to make a difference, don’t you?” Millett asked. “It just seems to me you’re wanting a lot more in picking out those numbers.”
Judge Neomi Rao, a Trump appointee, also questioned Lin’s logic.
“I’m not exactly sure what you, even ideally, what you would like from this court,” Rao said.
“Our argument is that their interpretation of the statute is incorrect,” Lin said.
“What would we say the correct interpretation is?” Rao said. “Usually when you say that the agency has gotten it wrong, courts have some account of what the right interpretation is. I don’t see what that would be.”
That cost analysis was a factor EPA considered and “was not the central justification for the rule,” said Riley Walters, Justice Department counsel appearing on EPA’s behalf.
“We don’t think the court needs to decide whether EPA is required to consider cost,” Walters said, adding that the estimation analyses “were merely illustrative.”
It’s difficult to get an exact number because EPA calculates the price to clean up hazardous contamination on a site-by-site basis.
“The sort of precision they are looking for can’t be provided at this stage,” said Jonathan Kalmuss-Katz, an Earthjustice attorney representing environmental advocacy groups in support of EPA’s rule. “When EPA lists a Superfund site, it has no idea how much the remediation of that site is going to cost. Here, we are stages before that. … This is a decision to add two substances to a list of some 800 hazardous substances.”
Millett said she thinks EPA has “dealt with the uncertainties and the complexities” in explaining its cost-benefit analysis approach.
“I don’t know what more we asked of them in this context,” Millett said.
