Water utilities and chemical companies are challenging a recent rule from the Environmental Protection Agency that limits some PFAS, or “forever chemicals,” in drinking water.
At least three lawsuits against the rule were filed in the U.S. Court of Appeals for the D.C. Circuit this month, ahead of a June 10 deadline for submitting such challenges. The Safe Water Drinking Act, requires parties challenging a regulation to file a petition within 45 days of its publication in the Federal Register.
The lawsuits, filed by parties that may be directly or indirectly responsible for paying to remove PFAS from tap water, take aim at the EPA’s science, cost analysis, and rulemaking process. Legal experts say the pushback is expected, and it’s not yet clear how much traction these challenges will gain in court.
PFAS are a class of man-made chemicals that are used to waterproof and stainproof many products – from raincoats to mascara, couches and cooking pans. They can persist for many years in the environment.
The EPA finalized a rule in April to limit the amount of six PFAS chemicals in the drinking water, citing concerns over their effect on human health.
The challenges to the rule come from trade groups representing water utilities and chemical manufacturers, and from one specific chemical company that makes PFAS, The Chemours Company. The parties have submitted three- to five-page petitions alleging that the EPA rule is “arbitrary and capricious” and exceeds the agency’s authorities under the Safe Drinking Water Act.
“All they’ve done [so far] is name the bare legal basis, and then they say, ‘We're leaving the substance for later,” says Steph Tai, an environmental law professor at University of Wisconsin-Madison, who expects more substantive briefs to be filed in coming months.
In response to requests for comment, representatives of the water utility and chemical manufacturing groups referred to statements alleging the EPA didn’t rely on the best available science and underestimated the cost of the rule. Chemours said in a statement that the EPA used “unsound data” and “misuses its authority.” The EPA declined to comment, citing the pending litigation.
“It's really disappointing to see the polluters that are spewing this stuff out into the environment and contaminating the drinking water, joining forces with the water utilities themselves in trying to overturn these rules,” says Erik Olson, a senior strategist with the Natural Resources Defense Council, a nonprofit advocacy group.
PFAS were first made by industrial chemists in the 1930s and are now found widely in the food and water supply and in most people’s blood.
“Basically, every American is walking around with this stuff in their bodies,” says Olson, with NRDC, “Nobody signed up for that, but we're all exposed to it and being put at risk.”
Long-term exposure to PFAS through drinking, eating and breathing them in has been linked with liver damage, high cholesterol, and certain cancers. The chemicals have also been linked with immune problems in children.
The EPA estimates that the new regulation will save at least $1.5 billion dollars a year in health-related costs, because fewer people will get cancers, heart attacks and strokes from drinking PFAS in their water.
The agency expects the rule to cost around $1.5 billion dollars each year to implement.
“Anything that has high costs to industry is going to be challenged,” says Tai, with University of Wisconsin-Madison, who worked as an appellate attorney in the Department of Justice during the George W. Bush administration. Since rules don’t get challenged at a trial level, “it's pretty much a matter of sticking lawyers on it and writing briefs, so it's [often] in their financial best interests just to go for it,” they say.
For hints on how the plaintiffs may argue that the EPA is overstepping its authority, Tai refers to the 2022 Supreme Court decision in West Virginia v. EPA.
In that case the Court ruled in favor of a group of fossil fuel-producing states and coal companies to curb the EPA’s ability to regulate greenhouse gas emissions. As NPR reported, the decision prevented the agency from setting carbon-emission limits as a way to force the power generation industry to move away from coal.
In the majority opinion, Chief Justice John Roberts relied strongly on the “major questions doctrine,” writing that the government did not prove it has “‘clear congressional authorization’ for the authority it claims.” Challengers to the EPA’s PFAS limits may similarly argue that, if Congress had wanted the EPA to regulate chemicals as commonplace and ever-present as PFAS, they would have said so, Tai says.
As it stands, the EPA’s PFAS drinking water regulation requires water utilities to monitor for certain PFAS chemicals in their water through 2027, and to remove those PFAS chemicals that exceed the EPA’s set limits by 2029.
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