Credit: Know Your H2O

Surprise! Chemical Companies Sue To Force People To Keep Drinking PFAS Chemicals

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Well, that didn’t take long. Just months after the Biden administration issued new regulations designed to limit the amount of “forever chemicals” in drinking water, the companies who manufacture them have assembled a highly paid team of shysters lawyers to sue the EPA. They are not claiming their products are good for people. They are claiming the government agency has exceeded its authority, part of the new mantra among billionaire conservatives that the federal government has no power to do anything that might diminish their profits.

Forever chemicals, known as PFAS, are per and polyfluoroalkyl substances. They have been linked to cancers, liver and heart damage, and immune and developmental damage to infants and children. This new rule designates two widely used PFAS chemicals, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund, and will help ensure that polluters pay to clean up their contamination.

A report by the New York Times says a group of chemical and manufacturing groups sued the federal government on June 10, 2024, saying it has exceeded its authority under the Safe Drinking Water Act by requiring municipal water systems to remove all six of the synthetic chemicals grouped under the PFAS label that are present in the tap water of hundreds of millions of Americans. The EPA has said the new standard, put in place in April, will prevent thousands of deaths and reduce tens of thousands of serious illnesses. The American Chemistry Council and National Association of Manufacturers said the EPA rule was “arbitrary, capricious and an abuse of discretion.” The petition was filed in the Court of Appeals for the District of Columbia.

The EPA rule was expected to prompt a wave of litigation against chemical manufacturers by water utilities nationwide in an effort to recover their cleanup costs. The utilities have also challenged the stringent new standard, questioning the underlying science and citing the cost of filtering the toxic chemicals out of drinking water.

In a separate petition, the American Water Works Association and the Association of Metropolitan Water Agencies said the EPA had “significantly underestimated the costs” of the rule. Taxpayers could ultimately foot the bill in the form of increased water rates, they said, which is undoubtedly true. Industry groups are famous for foisting off the cost of cleaning up their messes onto the shoulders of someone else. Superfund sites? Let taxpayers pay. Uncapped wells leaking toxins into the groundwater and methane into the atmosphere? Not our problem. Let the taxpayers cover the cost. And on and on it goes, the quasi-criminal game known as free enterprise which allows business to enjoy all the profits, while expecting society to subsidize the cost of disposing of waste products.

PFAS chemical are widespread in the environment. They are commonly found in people’s blood, and a 2023 government study of private wells and public water systems detected PFAS chemicals in nearly half the tap water in the country. Exposure to PFAS chemicals has been associated with developmental delays in children, decreased fertility in women, and increased risk of some cancers, according to the EPA. Brenda Mallory, chair of the White House Council on Environmental Quality, on Monday defended the Biden administration’s stringent standards. “Everyone should be able to turn on the tap and know that the glass of water they fill is safe to drink,” she said. EPA officials added that the new standard was based on the best available science and was designed so that it “would be robust enough to withstand litigation.”

The EPA estimates it would cost water utilities about $1.5 billion annually to comply with the rule, though utilities have said the costs could be twice that amount. States and local governments have successfully sued some manufacturers of PFAS for contaminating drinking water supplies. President Biden’s bipartisan infrastructure law, passed in 2021, sets aside $9 billion to help communities address PFAS contamination. The EPA said $1 billion of that money would be set aside to help states with initial testing and treatment.

PFAS Contamination & The Supreme Court

The ugly backstory here is that the industry suit will, in all likelihood, fail at the trial court level but prevail in the Supreme Court, where the so-called justices, one of whom is the biggest grifter in American history and another is a nut who wants to impose his extreme religious views on the other 333 million citizens alive today, have constructed a new legal theory they call the “major questions” doctrine.

An analysis of the “major questions” doctrine enunciated by the court from the Stanford Environmental Law Journal says, “The Supreme Court’s recent decision in West Virginia v. EPA, 142 S. Ct. 2587 (2022), announced the arrival of the major questions doctrine, a substantive canon of construction that bars agencies from resolving questions of “vast economic and political significance” without clear statutory authorization. While the contours of the doctrine are still murky, early predictions suggest it will function to substantially curtail the scope of the administrative state.

“Despite these significant implications, the Court has not been clear about the doctrine’s origins or purpose. Some defenses of the doctrine have sought to justify it as an intuition about how Congress writes statutes, a kind of linguistic canon. Others, including Justice Gorsuch, attempt to root the doctrine in the Constitution, grounding it in the nondelegation doctrine.”

The distinction matters, the SELJ article maintains, “because constitutionally inspired doctrines have more bite than linguistic canons. If the major questions doctrine is truly just another linguistic canon, it may fit within the Court’s ordinary process of statutory interpretation and yield to other canons in any case. As a constitutional doctrine, by contrast, it allows the Court to deviate from the text and adopt narrower readings of otherwise unambiguous statutes.”

No matter how you slice it, the “major questions” doctrine is a fiction thought up by those who have been suckled by the Federalist Society. They have become activist judges who find the law to be what that group’s radical agenda says it should be. It is relevant to point out that the Federalist Society was in part a creation of Charles Koch, who has dedicated his life to opposing government restrictions that restrain the profits of industrial corporations.

The US Supreme Court as currently constituted is determined to bring an end to the administrative state, the one that conservatives reactionaries call the “deep state” where people with real expertise make policy decisions based on science, not ideology. The logical extension of the “major questions” doctrine is that Congress should be doing what agencies like the EPA are doing. Most readers will need about 4 milliseconds to realize that situation would bring government to a halt — which is precisely what reactionaries want. They crave an end to the umpires and referees who mediate between corporate America and the American people.

The Takeaway

The lesson here is that industry wants complete immunity from any costs to clean up after itself. The oil and gas companies want immunity. The chemical manufacturers want immunity. All the time, your children’s bodies are absorbing toxic substances that effect development of their brains and these companies are OK with that because they provide jobs, and people need jobs, and jobs make America strong, and who cares anyway if a few kids get sick and die? You can’t make an omelet without breaking a few eggs! Hard cheese if your kid gets sick. Now leave us alone so we can get back to the important business of increasing shareholder value for your investors.

The Supreme Court will decide ultimately whether people should be able to drink clean water, not the executive branch and not Congress, That is a recipe for chaos — and big profits. Nothing says power quite like being able to poison people without incurring any penalty.

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Steve Hanley

Steve writes about the interface between technology and sustainability from his home in Florida or anywhere else The Force may lead him. He is proud to be "woke" and doesn't really give a damn why the glass broke. He believes passionately in what Socrates said 3000 years ago: "The secret to change is to focus all of your energy not on fighting the old but on building the new." You can follow him on Substack and LinkedIn but not on Fakebook or any social media platforms controlled by narcissistic yahoos.

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