Shortly after the ruling, the NRDC stated in an explainer article, “… the Supreme Court seized for both itself and lower-court judges a policymaking role that the Constitution did not intend for them to have. The court stripped many federal agencies tasked with protecting public health, public safety, and the environment—including the U.S. Environmental Protection Agency (EPA) and the U.S. Food & Drug Administration, to name just two—of their power to interpret the laws they carry out. Instead, federal judges now get to call the shots.”
Chemical Processing reported that The Alliance for Chemical Distribution (ACD), which represents more than 400 chemical industry distributors, issued a statement saying the decision to overturn the Chevron doctrine would eliminate interpretations of vague legal language.
“Chevron has limited the ability of courts to ensure agencies and regulators are interpreting the law as it was intended, with no real path for overturning unlawful agency actions or overreach,” said ACD president and CEO, Eric Byer.
But not all influence is lost, according to Lynn Bergeson, Chemical Processing’s compliance columnist and managing director at Bergeson & Campbell. She and co-author Kelly N. Garson address several questions in a soon-to-be published paper, “Loper Bright and TSCA: Will the demise of Chevron matter?”
“The EPA’s well-supported views will continue to command respect under any standard. The court in Loper Bright made it abundantly clear that although an agency’s view is not binding on the court, an agency’s view "may be especially informative ‘to the extent it rests on factual premises within [the agency’s] expertise.’"
Still, Bergeson and Garson note that the recent Loper Bright decision has invited much discussion on whether decisions made by the EPA under TSCA, especially under sections 4 (testing), 5 (new chemicals), and 6 (existing chemicals), can be expected to be challenged more routinely and with a greater probability of success.
“The answer is probably so, but time will tell. The better question, however, is what stakeholders should do differently in advocating on TSCA issues in light of Loper Bright.”
The duo note, “TSCA advocates must be relentlessly compelling, fact-based and thorough in advocating for their positions in a Chevron-free world. Industry advocates will have a better shot at prevailing based on a careful review of the record taken as a whole, free of the Chevron mandate some courts have been compelled to apply.”
The Bergeson and Garson paper explains that TSCA mandates that manufacturers and processors are responsible for developing adequate information on the environmental and health effects of chemical substances and mixtures.
“A case of first impression, Vinyl Institute v EPA challenged the EPA’s implementation of its new TSCA section 4 test order authority under Lautenberg in the US Court of Appeals for the DC Circuit [No 22-1018, slip op. at 8 (DC Cir. 5 July 2024)]. Though the DC Circuit has not yet issued its mandate in the case, the petition for review concerned the EPA’s 2022 test order requiring avian chronic toxicity testing for 1,1,2-trichloroethane. In reviewing whether the EPA met the rigorous burden of demonstrating substantial evidence under TSCA section 4(a)(2), which authorizes the EPA to require the development of new information necessary for it to conduct a TSCA section 6 risk evaluation, the court found that the EPA did not provide substantial evidence in the public record for the court to review, leading to the court’s vacatur and remand of the order.”
“The DC Circuit did not find, however, that all of the EPA’s determinations lacked substantial evidence. In those cases where the court upheld an EPA decision, the court considered whether the EPA’s explanation "makes sense" or was a reasonable determination. Most significantly, the DC Circuit held that the EPA provided substantial evidence demonstrating that avian chronic toxicity testing is, in fact, necessary for the EPA to complete its 1,1,2-trichloroethane risk evaluation.”
