Written by Gregor I. McGregor, Esq.
EPA in April listed two ubiquitous “forever” PFAS chemicals -PFOA and PFOS- as hazardous substances under Superfund (CERCLA), triggering reporting, testing, cleanup, and monitoring responsibilities for arrangers, transporters, treaters, disposers and other Potentially Responsible Parties (PRPs), including manufacturers, users, and property owners under Superfund’s strict, joint and several, and retroactive liability.
The listing will affect site assessments, Due Diligences, Innocent Landowners, existing and closed Superfund sites and those buying or selling dirty property.
Earlier in April EPA announced final drinking water standards under the Safe Drinking Water Act (SDWA) for six PFAS compounds. These Maximum Contaminant Levels (MCLs) mean that public water systems (PWSs) must now sample for, monitor, and remove chemicals that typically require new treatment treatments and methods. The states are following the federal lead.
Environmental justice considerations are being added to staffing, programs, rulemaking, permitting, enforcement, cleanups, grants, and education. The Biden administration has prioritized justice and equity across all federal agencies through funding initiatives, personnel, policies, enhanced public participation, and other EJ-related efforts. The Inflation Reduction Act (IRA) and Bipartisan Infrastructure Law have significant funding for EJ-related initiatives.
The Supreme Court is an obstacle to progress as relates to environmental law, overturning precedent by way of the “Major Questions Doctrine” — allowing courts to reject agency claims of a regulatory authority when the underlying claim of authority concerns an issue of “vast economic and political significance” and when Congress has not clearly empowered the agency with authority over the issue.
Cases like Sackett v. EPA and West Virginia v. EPA under the Major Questions Doctrine have the effect of lessening protection of wetlands and wetland resources by limiting what can constitute “waters of the U.S.” (Sackett) as well as ruling against plans to better regulate greenhouse gas emissions (West Virginia).
The Chevron Doctrine under the Administrative Procedure Act is under attack, at risk of being overturned in the Supreme Court in the case of Loper Bright Enterprises v. Raimondo. This could remove agency deference to decide on matters initially governed by the Legislature but later needing clarification due to legislative language being ambiguous.
If Chevron is reversed, it would be a major change in administrative law, inviting new legal challenges to agency regulations. Complex issues usually left to specific agencies like EPA to flesh out because of the agency’s specialized knowledge would be left to the discretion of the judiciary. This would mean the courts would presume that Congress does not delegate such issues to agencies. This could target some long-established environmental laws.