PFAS Observer
A recent Supreme Court ruling could further jeopardize EPA’s PFAS hazardous substance designation, as the agency is attempting to advance a novel use of delegated legislative authority to further regulate PFAS chemicals.
On June 28, the Supreme Court issued its opinion in Loper Bright Enterprises v. Raimondo, 603 U.S. ____ (2024), overturning the longstanding doctrine known as “Chevron deference.” Loper Bright substantially expands the ability of federal courts to review and reject federal agencies’ interpretation of statutes.
Not two months before the Court issued its decision in Loper Bright, the U.S. Environmental Protection Agency (EPA) published its long-awaited rule designating two PFAS compounds, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) on May 8, 2024. The Final Rule has significant immediate impacts, which Pillsbury has described in greater depth here, but is also novel in a legal sense: The Final Rule marks the first time that the agency has designated a hazardous substance using its authority under Section 102(a) of CERCLA.