Last week, in Chamber of Commerce v. EPA, the D.C. Circuit Court of Appeals rejected challenges to EPA’s decision to list PFOA and PFOS, the two most prominent PFAS compounds, as hazardous substances under CERCLA. It’s an important decision, and not just because pressure to clean up sites contaminated with PFAS seems to be increasing every day.
It’s also important because the opinion contains an unqualified affirmation of EPA’s authority to regulate under uncertainty. As I’ve noted previously in this space, EPA’s authority to regulate under uncertainty was originally established in Ethyl Corp. v. EPA. It has not been seriously questioned in the 50 years since Ethyl Corp. v. EPA was decided.
Given the assault in recent years on the modern administrative state, one could imagine courts backing away from Ethyl Corp. v. EPA. In this context, it is notable that the decision in Chamber of Commerce v. EPA was unanimous, and one of the members of the panel was Neomi Rao, perhaps the most prominent anti-regulatory appellate judge short of the Supreme Court.
The Court’s opinion was dismissive of the petitioners’ arguments. Citing to Ethyl Corp. v. EPA, the Court stated that:
“Petitioners also forget that, in CERCLA, Congress wrote a statute that would operate on the basis of scientific knowledge and information about health and environmental risks. Congress presumably knew that “[s]cientists typically speak not of certainty, but of probability; they are trained to act on probabilities that statistically constitute ‘certainties.’” (“Even scientific ‘facts’ are not certain, but only theories with high probabilities of validity.”); (“[A statute] may at times require * * * action in the face of uncertainty, lest ‘the precautionary purpose of the statute’ be undermined.”). To require absolute scientific certainty as to what will happen upon every individual release of a dangerous chemical would have been to legislatively paralyze CERCLA.”
Chevron is dead! Long live deference to administrative agency technical decisions!