EPA’s historic move to regulate “forever chemicals” in drinking water has set the stage for a multi-pronged courtroom slugfest among the agency, water utilities that must comply with the rule and multinational conglomerates that have flooded the environment with the toxicants linked to a long list of health problems, including cancer.
Although lawsuits cannot be filed until EPA finalizes its PFAS proposal, interested parties will spend the coming months filling the regulatory docket with comments that will eventually inform the final rule or shape opponents’ future legal challenges against the agency — and one another.
Case law on the topic is limited: EPA’s proposal marks the agency’s first enforceable standard of its kind for PFAS and its first effort to regulate a drinking water contaminant in over 25 years.
“We are in uncharted territory,” said Emily Lamond, a member of the environmental department at the law firm Cole Schotz PC. “This is an exceptional situation.”
EPA’s ambitious proposal released Tuesday would set drinking water limits for two of the most notorious types of per- and polyfluoroalkyl substances — PFOA and PFOS — at 4 parts per trillion, the lowest level that labs can reliably measure. The agency also moved to include four other chemicals — PFNA, PFHxS, PFBS and HFPO-DA (better known as GenX) — that had not been originally slated for the drinking water proposal.
PFAS are a class of more than 10,000 chemicals that are valued for their moisture-resistant properties. They can be found in products including dental floss, nonstick cookware and firefighting foam.
Radhika Fox, EPA’s top water official, estimates that the rule would cost about $772 million annually to implement and would carry about $1.2 billion per year in human health benefits, including reduced incidence of cancer, heart attacks, strokes and birth complications (Greenwire, March 14).
Legal observers say the rule’s price tag — which encompasses costs associated with communication and technology installation — is likely to spur lawsuits from municipal water utilities and states that have already set less stringent standards than the ones EPA is proposing.
Water industry members have so far remained vague about how they will respond to the limits, but multiple trade organizations have already expressed concerns.
In one of the most assertive responses, the Association of Metropolitan Water Agencies said it had major concerns regarding the proposal. While the association indicated support for regulations, CEO Tom Dobbins said that the group would be closely analyzing EPA’s cost-benefit analysis “to ensure the accuracy of this estimate and explore additional estimates of social benefits.”
One major source of eyebrow-raising is EPA’s stated cost estimate. PFAS treatment has historically cost individual water utilities more than $40 million, a number that would easily exceed the agency’s estimate when applied on a wide scale. The association said it would request that EPA extend its comment period to 90 days to allow for additional industry feedback.
And while no water groups have yet indicated they will sue, such concerns around costs could unleash legal action, with those industry members arguing that the money will wind up hitting ratepayers if EPA does not shift responsibility over to PFAS manufacturers.
Water industry groups could also take direct legal aim at those companies — which include 3M Co., DuPont and Chemours Co. — to recoup the costs of complying with EPA’s rule.
Litigation against EPA could also come from the chemical industry, which has already raged against the agency’s announcement. The American Chemistry Council said Tuesday that it questioned the science underpinning the agency’s decision and had “serious concerns” with the Biden administration’s reasoning.
Just how far that anger will carry is unclear. Both ACC and Chemours had already sued the agency over its nonbinding health advisories for PFAS, arguing that regulators have taken a “scientifically unsound” approach to determining public health risks.
While a federal appeals court threw out ACC’s lawsuit in January, the issue has remained heated for members of the regulated community.
And with EPA’s far more impactful proposed rule, industry members are likely to feel even more government pressure, heightening prospects for legal action. Chemours has already seen some success with its challenge; in December, an appeals court denied EPA’s attempt to have that lawsuit thrown out (Greenwire, Dec. 8, 2022).
But some industry members have already signaled a new approach to fights over PFAS. In a dramatic announcement at the end of the year, manufacturer 3M announced that it would phase down its production of PFAS and move away from the chemicals (Greenwire, Dec. 20, 2022). The chemical giant plans to complete those efforts by the end of 2025.
EPA’s Tuesday proposal raises “big questions,” said Emily Tabak, a partner at the law firm Kirkland & Ellis LLP. She said she expects the agency to try to address many of those concerns during the rulemaking process.
“But,” she continued, “I would expect litigants that may challenge the rule to raise those after the rule is finalized.”
When the time comes, critics of EPA’s PFAS drinking water rule will have a few options for shaping potential legal challenges against the agency.
Lawsuits are likely to be grounded in the Administrative Procedure Act, which prohibits federal agencies from crafting rules that are “arbitrary and capricious,” and the Safe Drinking Water Act, which says regulations must be technologically and economically feasible.
“The challengers will be entities that either manufacture these products or use these products or face some liability for their prior use of these products,” said Alexandra Dunn, a partner at the law firm Baker Botts. “Then the question will be: ‘Did EPA act reasonably in its assessment of the science, review of the comments and in setting the levels?’”
Dunn, who led EPA’s chemicals office during the Trump administration, said there are four prior legal challenges that have come up through the U.S. Court of Appeals for the District of Columbia Circuit that may indicate how the courts are likely to view challenges of the agency’s PFAS drinking water standard.
In 2000, the D.C. Circuit ruled against EPA for setting a maximum contaminant level goal (MCLG) for chloroform at zero due to concerns that the chemical could cause cancer — despite evidence that there is some level of safe exposure. The same court in 2003 upheld the agency’s standards for radionuclide levels in public water systems and in 1992 allowed EPA to set an MCLG of zero for perchloroethylene, which is commonly used in dry cleaning.
“As we are not scientists and must defer to the Agency’s judgments on matters within its technical competence, our task is to assure that they be reasoned, not that they be right,” the D.C. Circuit wrote in the 1992 ruling.
And in January, the D.C. Circuit dismissed on standing grounds the challenge from ACC against EPA’s nonbinding interim lifetime health advisories for PFOA and PFOS in drinking water (Greenwire, Jan. 24).
The case illustrates that potential challengers of EPA’s PFAS drinking water standard will need to think carefully about how they’ll show that they’ve been injured by the agency’s rule, said Tabak, who works with companies on environmental compliance.
“Establishing standing is going to be important, based on this D.C. Circuit case,” she said.
Overall, the case law on EPA drinking water standards also demonstrates the importance of courts’ deference to federal agencies’ regulatory decisionmaking. Conservative jurists — especially those who currently dominate the Supreme Court — have in recent years been less likely to give agencies leeway on rulemaking.
“It’s certainly not automatic that the agencies would receive deference,” said Dunn. “But when EPA makes such science-driven decisions, it can be very difficult to challenge them because there’s not a lot of policy. There is a lot of science.”
She added, “If anything, the court’s tools in their toolbox will involve asking EPA to take another look at its decision on any one of the compounds.”