PFAS Playbook

The US Supreme Court’s June 28 decision to end judicial deference to agencies’ reasonable interpretations of laws comes at a pivotal time for new regulations related to “forever chemicals”—per- and polyfluoroalkyl substances known as PFAS.

The Environmental Protection Agency is developing its PFAS strategic roadmap, which lays out scores of planned response actions including research projects and new regulations. Those regulations are in different stages of the rulemaking process, with some finalized, some proposed, and others just anticipated.

EPA is already facing judicial challenge in the US Court of Appeals for the DC Circuit after designating two PFAS as hazardous substances under the Superfund law, or CERCLA. For the first time, the EPA used Section 102(a), which permits it to designate, as hazardous, substances that “when released into the environment may present substantial danger to the public health or welfare or the environment.”

Comments on the proposed rule cited the lack of a statutory definition of “substantial danger” and prior applications of agency deference under Chevron v. NRDC to criticize the EPA’s lack of explanation of the standard under this previously unused provision and that EPA failed to consider costs.

While the EPA’s final rule undertook a “totality of the circumstances” analysis, including a formal cost-benefit analysis, the challenge to this rulemaking is strengthened by the overturning of Chevron. Absent the deference Chevron provided, challengers can offer the reviewing court multiple reasonable interpretations of what constitutes a “substantial danger” under CERCLA, and the court will evaluate whether EPA’s interpretation in this rulemaking was reasonable.

The Supreme Court’s ruling in Loper Bright v. Raimondo will also affect how agencies draft regulations, including timelines, such as for the rules outlined in the EPA’s PFAS roadmap. Where those regulations are based on an agency’s interpretation of a statute, agencies must now anchor their regulations to the language of their authorizing statutes.

This is particularly true when regulators use older statutory provisions to address emerging problems in environmental law. With the looming promise of judicial challenges, we can expect implementation of new (and likely to be challenged) regulations to be inconsistent, irregular, and uncertain as those challenges proceed.

The majority in Loper Bright resurrected doctrine from Skidmore v. Swift & Co., a New Deal-era case that allowed courts to respect agency interpretations in pursuit of an official duty and based on specialized experience. Agencies may now look to this standard as setting the bar for how to insulate regulations from judicial challenge.

They may devote more resources to anticipate other reasonable interpretations or to preemptively establish how the agency’s interpretation merits Skidmore deference in their proposed rulemakings.

As EPA continues to regulate “forever chemicals,” this decision will impact how those regulations are drafted and challenged.

For more information on Chevron deference and its impact, contact the authors Jessica Rosell, Jackson Hobbs, or Gillian Wener.

The cases are Loper Bright Enters. v. Raimondo, 2024 BL 221307, U.S., No. 22-451, 6/28/24 and Relentless v. Department of Commerce, U.S., No. 22-1219, decided 6/28/24.

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