Chevron and Forever Chemicals
By Betsy Jarosick (CAS ’27)
Every day, millions of Americans are exposed to Per- and Polyfluoroalkyl Substances (PFAS), a group of chemicals linked to serious health impacts. 1 PFAS are present in a wide variety of sources, from cookware to firefighting foam to drinking water. 2 Also known as “forever chemicals,” PFAS are extremely persistent in the environment, and therefore, will accumulate over time in things like air, water, and living organisms, and water. As many as 97% of Americans have some amount of PFAS in their blood, and one or more PFAS chemicals is predicted to be present in 45% of US tap water. 3 Additionally, at higher concentrations, they have been found to cause reproductive and developmental issues and increase the risks of some cancers, among other negative health effects. 4 In April 2024, the Environmental Protection Agency (EPA) set forth a new set of regulations for PFAS in drinking water, in order to lessen Americans’ exposure to these potentially harmful substances. 5
The risks of PFAS led the EPA, acting in its capacity under the Safe Drinking Water Act (SDWA), to implement National Primary Drinking Water Regulations. These regulations created limits on the amount of six selected PFAS (PFOA, PFOS, PFHxS, PFNA, and HFPO-DA). 6 Agencies’ authority to interpret laws is especially relevant when it comes to environmental regulations, as legislators may lack the specific knowledge of how a given compound ought to be regulated. Agency regulations were previously guided by the ruling in Chevron v. Natural Resources Defense Council, which established a framework for how agencies should administer statutes: if Congress addressed a specific issue directly, then the court must defer to legislative intent; if Congress is “silent or ambiguous with respect to the specific issue,” then the court must determine whether they are “reasonable” interpretations of the statute. 7 However, the court overruled the Chevron precedent in Loper Bright Enterprises v. Raimondo in 2024, determining that “courts may not defer to an agency interpretation of the law simply because a statute is ambiguous,” though agencies may still interpret laws when a statute specifically delegates that power to them. 8
This decision sparked numerous judicial challenges to EPA rules. Since the SDWA itself makes no mention of maximum PFAS levels—or even of PFAS at all—their inclusion in its regulations is derived entirely from the EPA’s rulemaking authority as an agency. Therefore, Loper Bright v. Raimondo’s criticisms of the power of agencies could be applied to oppose these regulations. In fact, several such challenges have already been raised in response to this rule in light of the Loper Bright ruling. A petition from the American Water Works Association and Association of Metropolitan Water Agencies explicitly challenges the EPA’s authority to make these rules, arguing that the rule was implemented “in excess of statutory authority.” 9 Another challenge from the National Association of Manufacturers and American Chemistry Council is based on similar reasoning, arguing that the implementation of the PFAS regulations would be “an abuse of discretion.” 10 Specific information about the basis of these challenges is still limited due to the rule’s recent implementation. It is yet to be seen whether the plaintiffs will directly invoke Loper Bright, but even if they do not, its new framework will play a part in the court’s evaluation of these cases. Though the Supreme Court stated that Loper Bright “does not call into question prior cases that relied on the Chevron framework,” its removal of that framework created new opportunities for legal challenges to agency regulations and has empowered those cases to have a profound effect on what agencies are and are not permitted to do. 11
To discuss the implications of Loper Bright v. Raimondo for these particular regulations, it is necessary to review the SDWA itself to determine whether PFAS limits would be considered an exercise of delegated authority or an extrapolation from a potentially unintentional ambiguity in the statute. The SDWA authorizes agencies to “publish a maximum contaminant level goal and promulgate a national primary drinking water regulation for a contaminant,” if it is found that a substance “may” have negative human health impacts and is present in drinking water, and if reducing it could have “meaningful” benefits for the population’s health. 12 The potential challenge lies in whether the six PFAS truly fit all three of the above criteria; if they do not, the EPA would lack the jurisdiction to enact these regulations.
The petition brought by the American Water Works Association and Association of Metropolitan Water Agencies says that the “EPA did not rely on the best available science and the most recent occurrence data, and used novel approaches as the basis for certain portions of the rule.” They argue that PFAS do not meet the criteria for National Primary Drinking Water Regulations, so regulating them is out of the scope of the EPA’s agency powers. 13 If the court chooses to hear the case, its outcome would hold significant weight under Loper Bright’s new precedent. The validity of the scientific evidence supporting PFAS’s prevalence, effects, and potential treatability would be determined not by the EPA but by the courts. In the Loper Bright decision, the court determined that the question of deference has more to do with restoring judicial power to resolve ambiguities than the contents of the ambiguities themselves. Justice Roberts wrote for the majority that “courts to do their ordinary job of interpreting statutes, with due respect for the views of the Executive Branch” in cases that might involve specialized agency knowledge. 14 However, this new framework may create potential difficulties when the statutory dispute is of a scientific nature rather than a legal one. When interpreting statutes that involve determining the validity of a scientific claim based on a wide range of environmental and human health data, the court may be unprepared to make a decision, or burdened by the amount of time and information required to make such a review. However, a lack of deference to agencies does not mean their banishment from the courtroom; the judges may draw on agency experts’ judgements and subject matter expertise as they evaluate the legal merits of the petitioners’ claims. 15
The matter of PFAS regulations is just one regulatory issue that will be brought to court after Chevron was overturned. Loper Bright’s impact will resound not only through its specific implications, but also in how it alters the very processes and powers of American executive agencies. Agency rules, not only the legislative text, often determine the extent and function of the EPA’s regulations on factors such as air and water pollutants, habitat protection, toxic chemicals, and hazardous waste. Loper’s empowering of federal courts has the potential to impact the enforceability of these rules and the broader balance between the courts, legislators, and agencies when it comes to environmental regulation. In a time of changing legal standards and climate conditions, the EPA will certainly be faced with more challenges beyond those to their PFAS regulations; how the agency will reckon with them in court and congress is yet to be seen.
Works Cited
“Per- and Polyfluoroalkyl Substances (PFAS): Final PFAS National Primary Drinking Water Regulation,” Environmental Protection Agency, updated July 12, 2024, https://www.epa.gov/sdwa/and-polyfluoroalkyl-substances-pfas#General.
“Drinking Water Regulation.”
“Drinking Water Regulation.”
Ryan Lewis, Lauren Johns, and John Meeker.,“Serum Biomarkers of Exposure to Perfluoroalkyl Substances in Relation to Serum Testosterone and Measures of Thyroid Function among Adults and Adolescents from NHANES 2011–2012.” International Journal of Environmental Research and Public Health 12, no. 6 (May 29, 2015): 6099, https://doi.org/10.3390/ijerph120606098.
“Our Current Understanding of the Human Health and Environmental Risks of PFAS,” Environmental Protection Agency, last updated May 16, 2024, https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas.
“Drinking Water Regulation.”
Chevron U.S.A., Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837, 842–844 (1984).
Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024).
American Water Works Ass’n and Ass’n of Metropolitan Water Agencies v. EPA, No. 24-1188 (D. D.C. filed June 7, 2024), 2–3.
National Ass’n of Manufacturers and American Chemistry Council v. EPA, No. 24-1191 (D.C. Cir. filed June 10, 2024), 2.
Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2252 (2024).
Safe Drinking Water Act of 1974, 42 U.S.C. §300f et seq. (1974).
American Water Works Ass’n and Ass’n of Metropolitan Water Agencies v. EPA, No. 24-1188 (D. D.C. filed June 7, 2024), 2.
Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2269 (2024).
Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2269 (2024).