NORTH CAROLINA — Chemours’ fight to strike down the Environmental Protection Agency’s threshold on GenX outputs faces an uncertain future after an appeals court questioned legal precedent related to judicial review of similar advisories.
READ MORE: Courts approve of local intervention in Chemours, EPA litigation
ALSO: Appeals Court casts doubt on district judge’s dismissal of local groups’ PFAS testing petition
Shortly after the EPA announced its lifetime health advisory level for GenX at 10 parts per trillion (ppt) in June 2022, Chemours sued the agency. It requested the Third Circuit Court of Appeals review the toxicity assessment, describing it as “extreme” and “excessive.” Lawyers on both sides met for the first time Wednesday morning at the Third Circuit Court of Appeals in Philadelphia to argue their cases; it’s the designated district for Chemours’ headquarters in Delaware.
EPA’s advisories are non-regulatory and non-enforceable. Jurisdiction and enforceability concerns took center stage, rather than the debate centering among scientific degrees of danger GenX poses to public health. Judges Luis Felipe Restrepo, Michael Chagares and Arianna Freeman sat on the third circuit panel and raised questions as to whether the court held authority to review non-enforceable advisories.
The EPA enacted a health advisory level for GenX in 2022, 16 years after reaching a voluntary agreement with DuPont to use GenX as a replacement for PFOA — a PFAS group the agency recognized as toxic for years. The EPA later found GenX to be potentially even more toxic than its predecessor, after years of allowing Chemours’ Fayetteville Works facility to disseminate GenX — in addition to at least 53 other PFAS substances — in the Cape Fear River.
“This is the first time I’m aware that someone has challenged a health advisory in court,” attorney Bob Sussman told PCD; he is representing local nonprofit groups that petitioned to become intervenors in the case. It includes Clean Cape Fear, Cape Fear River Watch, Democracy Green, and Toxic Free North Carolina.
An intervenor is a party not included in the original case with a stake in the outcome and a unique perspective to contribute; the environmentalists’ intervenor status allowed them to submit a detailed 76 page brief to the court before the hearing to present their argument to the third circuit panel.
Sussman emphasized the national consequences of the Chemours v. EPA decision; it will provide precedent on whether courts have jurisdiction to review and strike down non-enforceable federal guidelines.
The EPA argues its health advisory level serves as an informational guideline rather than a legal requirement. Health advisories are supposed to use the best available science to identify the concentration of contaminants that can cause adverse health effects.
“Allowing the chemical industry to challenge these scientific reports in court will disincentivize EPA from sharing important health advice with communities,” Simi Bhat, senior attorney of the National Resources Defense Council — also among the groups intervening in the case — told PCD.
Chemours disagrees, viewing the advisory as a de facto regulation based on “flawed” science.
“We dispute that this is just put out as advice,” Chemours’ attorney Allon Kedem said at the hearing. “We think that from the start, EPA had the understanding that this was something that states were enacting into their substantive laws.”
Kedem of multinational law firm Arnold & Porter Kaye Sholer LLP, with a focus on regulatory issues, represented Chemours. Kedem — who has Supreme Court experience, having argued before the nation’s highest court 12 times throughout his career — argued state governments, such as Utah, have used EPA advisories to form enforceable regulations, providing sufficient evidence they lead to tangible legal consequences.
PCD reached out to the Chemours’ attorney to ask for other examples of legal precedent regarding health advisory levels but did not receive an answer by press.
Andrew Knedsen of the Department of Justice provided an oral argument on behalf of EPA. Knedsen countered that while federal agencies frequently publish advisories, it is up to other elected bodies to decide whether or not to enforce them.
“What states independently choose to do with that advisory doesn’t convert the report into an agency action,” he said.
Knedsen cited precedent from a 2016 Supreme Court ruling which found a Clean Water Act jurisdictional determination by the US Army Corps of Engineers was only judicially reviewable because it was a “final agency action” — meaning no further steps are required before it has legal impacts. Knudsen argued advisories do not qualify as final agency actions.
Judge Kagares asked Knedsen if the advisory contains a “threat of enforcement” — using Chemours’ Fayetteville Works facility, located 100 miles upstream from Wilmington, as an example. Knedsen rejected the notion and cited a consent order that Chemours agreed to with the North Carolina Department of Environmental Quality and Cape Fear River Watch.
He said there was no genuine threat of enforcement “largely because of” the consent decree that “actually includes a waiver of the state’s ability to pursue an enforcement action under that statute against Chemours for its Fayetteville facility — that’s in paragraph 34 of that consent decree. So the state can’t pursue an enforcement action against Chemours’ Fayetteville facility.”
PCD reviewed paragraph 34 of the consent order, which “releases and resolves administrative claims for injunctive relief and civil penalties” against Chemours for violations that “have been or could have been” brought forward based on information known to DEQ prior to November 28, 2018.
However, the DEQ fact sheet for the consent order states the decree does not prevent the state from further legal action against Chemours if it “acquires new information that requires such action.”
Sussman disputed Kedem’s argument that non-regulatory advisories are directly enforceable. The advisory is used to inform the public, he said, so it is the role of state governments to determine whether such guidelines hold legal consequences.
Sussman told PCD the court will provide an opinion on the case in coming months. He foresees three potential rulings.
First, the court may decide they do not have jurisdiction over non-regulatory guidelines — which would end the case unless Chemours appeals and weaken future attempts to challenge similar advisories.
If the panel decides they do have jurisdiction, they will review Chemours’ scientific arguments disputing the validity of the GenX advisory and either rule to maintain the guideline or side with Chemours to invalidate it.
The appeals court decided the groups’ had sufficient merit to serve as intervenors in February 2023. However, Chemours and the EPA both opposed environmentalists’ involvement in the suit; the intervenors’ attorney, Bob Sussman, told PCD he believes the EPA resisted environmentalists’ support because they thought it would overly complicate the case.
Democracy Green president La’Meshia Whittington — a member of the Department of Environmental Quality’s Environmental Justice and Equity Advisory Board — told PCD she believed her group’s intervenor status in the suit is an important means of addressing PFAS contamination.
“Here we are as local organizations, who are having to make inroads to create what could potentially be legal precedents,” Whittington said, “but also an inroad for us to have a protest opportunity.”
Notably, the same groups are currently suing EPA over their petition for comprehensive testing of Chemours-specific PFAS in North Carolina. Sussman represented the environmentalists as well in a hearing against EPA last week.
“All is fair in love and war,” he said.
Tips or comments? Email journalist Peter Castagno at peter@localdailymedia.com.
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