As part of a challenge to a recent US Environmental Protection Agency health advisory for drinking water, Chemours is using a novel argument linked to a recent Supreme Court ruling.
The fluorochemical manufacturer says the EPA’s health advisory, issued under the Safe Drinking Water Act, is unconstitutional. The company’s argument echoes a June 30 high court decision that limited the EPA’s ability to reduce greenhouse gas emissions from power plants.
In a July 13 court filing in federal appeals court, Chemours takes aim at a lifetime health advisory for per- and polyfluoroalkyl substances (PFAS) used in its GenX process for manufacturing fluoropolymers. They are hexafluoropropylene oxide dimer acid (HFPO-DA) and its ammonium salt. HFPO-DA taints drinking water supplies near and downstream of a Chemours plant in North Carolina.
The EPA in June set the advisory level at 10 parts per trillion (ppt) for either HFPO-DA or its salt. A drinking water health advisory means the EPA recommends that utilities notify customers when concentrations of a contaminant exceed the level—it is not a regulatory limit, nor does it require any action by Chemours.
Throughout the process of establishing the level, the company has challenged the science the EPA used, calling it flawed. Chemours is taking this argument to court, also saying that the agency made procedural errors. In addition, Chemours makes the novel argument that although the Safe Drinking Water Act gives the agency the authority to publish health advisories, Congress failed to give the EPA any constraints on those advisories. Without sufficient direction from federal lawmakers, the agency “has utilized unfettered discretion to publish health advisories, thereby affecting the legal rights and obligations of companies, water utilities, and others across the country.” This violates the US Constitution, Chemours concludes.
The Constitution gives the right to make sweeping policy decisions to Congress, though lawmakers may delegate authority to Executive Branch agencies.
In its 6–3 decision in West Virginia v. EPA, the Supreme Court says that the agency’s attempt to use the 2015 Clean Power Plan to control greenhouse gas emissions from the electricity sector was unconstitutional. The majority found that Congress did not specifically grant the EPA the authority to impose controls with such broad impact on the economy.
Chemours’s constitutional argument is part of a growing effort by industry lawyers to leverage the high court’s ruling in challenges to EPA actions, says attorney Robert Sussman of Sussman and Associates in Washington, DC. But a drinking water advisory “is a far cry from the ‘economy changing’ regulation of the power sector” that the Supreme Court set aside, says Sussman, a former EPA deputy administrator.
The HFPO-DA drinking water advisory is much more limited in scope than the Clean Power Plan “and typical of the types of decisions that Congress has committed to EPA discretion,” Sussman says.
“I’d be surprised if Chemours’s argument succeeds,” he says. “If it did, there would be virtually no limit to the narrow and routine EPA actions that could be challenged as unconstitutional.”