Kevin Poloncarz and Thomas Brugato’s commentary was included in a Chemical & Engineering News article explaining how the U.S. Supreme Court’s decision to overturn the Chevron doctrine will affect drug and medical device developers, chemical manufacturers, water suppliers, and energy producers.
There has already been a first wave of litigation over the EPA’s recent risk evaluations for a handful of high-priority chemicals, including asbestos and methylene chloride. The Supreme Court ruling could have significant implications for many of those pending lawsuits, Thomas said.
Another area of legal dispute is whether the EPA should assume that workers are wearing personal protective equipment appropriately when it considers risks under TSCA. The agency currently assumes they are not. As Thomas stated, “That’s important because if you assume workers are using PPE, then the risks are presumably going to be materially lower to them from these chemical exposures.” The courts will now have to confront these legal issues “without giving Chevron deference to the agency on these questions.”
Kevin observes that legal community has been preparing for the downfall of the Chevron doctrine since the Supreme Court enshrined the “major questions doctrine” in a 2022 decision blocking certain CO2 regulations the EPA had also based on the Clean Air Act. He also points out that policies based on tax credits may be safe because relevant legislation explicitly affords the U.S. Treasury Department more deference on tax collection rules.
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