Will PFAS Be the First Use of Chevron by the US Supreme Court?

The new federal drinking water PFAS regulations are likely to be impacted by the revised Chevron doctrine.

The US Supreme Court handed down its decision reversing the Chevron deference in late June 2024. Critics screamed there would be degradation of public health and death. Supporters of the decision argued that the bureaucracy has run amuck, and the decision restores the proper balance of power between the judiciary and administrative agencies. There has been a rash of lawsuits, but the reality is that neither extreme has happened. That is set to change in a few months as the new PFAS regulations move through the courts.

What is Chevron?

Chevron deference is a legal principle established in 1984 that directs courts to defer to a federal agency's interpretation of ambiguous laws that the agency administers. The recent Loper Bright Enterprises v. Raimondo ruling overturned this doctrine, meaning courts will no longer automatically defer to agencies' interpretations of ambiguous statutes. This change requires agencies to have clearer congressional authorization for significant regulatory actions.

Recent opinions by the US Supreme Court in West Virginia v. EPA and Corner Post v. CFPB also reaffirm the court’s interpretation of limited administrative interpretation powers.

What is PFAS?

PFAS stands for per- and polyfluoroalkyl substances.

According to the USEPA, PFAS are manufactured chemicals that have been used in industry and consumer products since the 1940s. Because of their widespread use and persistence in the environment, many PFAS are found in the blood of people and animals worldwide.

There are thousands of different PFAS, some of which have been more widely used and studied than others.

What are the proposed PFAS Standards?

In April 2024, USEPA issued the first-ever national, legally enforceable drinking water standard to protect communities from exposure to harmful PFAS. According to USEPA, the final rule will reduce PFAS exposure for approximately 100 million people, prevent thousands of deaths, and reduce tens of thousands of serious illnesses.

USEPA established legally enforceable levels, called Maximum Contaminant Levels (MCLs), for six PFAS in drinking water: PFOA, PFOS, PFHxS, PFNA, and HFPO-DA.

The levels for PFOA and PFAS of 4 parts per trillion (ppt) have drawn the most controversy.

Four ppt in an Olympic-sized swimming pool (2.5 million liters) is equivalent to 10 micrograms (µg) of any substance. Ten micrograms is smaller than a single drop from an eyedropper. So, 4 ppt is more like adding a tiny fraction of a grain of salt to an Olympic-sized swimming pool rather than a single drop from an eyedropper. It's such a minuscule amount that it's hard to visualize with common household items.

Critics argue that insufficient human health or environmental evidence justifies the extremely low levels.

What are the legal challenges to PFAS Drinking Water Standards?

Several federal-level lawsuits have been consolidated into one. The American Water Works Association (AWWA) and Association of Metropolitan Water Agencies (AMWA) provide a good summary of the challenges. Both organizations partner with USEPA, and neither has filed lawsuits against USEPA.

"AWWA and AMWA share the US Environmental Protection Agency's goal of protecting people from potentially harmful levels of PFAS in drinking water. Both AMWA and AWWA supported EPA's decision to swiftly pursue development of a national PFAS regulation, and we provided the agency with robust, constructive comments to maximize public health benefits in a cost-effective manner.

“We are concerned, however, that EPA did not use the best available data and appropriate processes in developing the PFAS regulation. For example, we question the use of a novel ‘Hazard Index’ in place of a Maximum Contaminant Level for mixtures of certain PFAS, and the issuing of a preliminary determination to regulate certain PFAS simultaneously with the proposed rule.

“The rule significantly underestimates nationwide costs, does not take into account the latest PFAS data, and will add to affordability challenges for many households without achieving the public health outcomes we all seek.

“Scientific process matters, especially when it will set precedent for how EPA develops future drinking water regulations. AMWA and AWWA therefore believe it is prudent to ask a court to verify that EPA constructed the PFAS regulation according to the letter and spirit of the Safe Drinking Water Act, and to give EPA an opportunity to revisit any components of the rule that fell short.”

Why is PFAS a good challenge for the new Chevron Doctrine?

The proposed PFAS standards by the USEPA are seen by some as an example of overstepping their congressional mandate due to several reasons.

Ambiguity in Congressional Authorization

Critics argue that the EPA interprets its authority too broadly under existing environmental laws like the Safe Drinking Water Act and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). They claim that Congress did not explicitly authorize the EPA to regulate PFAS to the extent proposed.

Chevron Doctrine

The new PFAS standards could be challenged under the revised interpretation of the Chevron doctrine. This doctrine traditionally allowed agencies like the EPA to interpret ambiguous statutes. However, recent Supreme Court decisions have limited this deference, suggesting that significant regulatory actions require clear congressional authorization.

Economic and Practical Implications

Implementing these standards could impose significant costs on industries and municipalities. Opponents argue that such impactful regulations should be directly mandated by Congress rather than through agency rulemaking.

PFAS, Chevron, SCOTUS, and What It Means to You

Death and destruction? Probably not. Draining the administrative swamp? Again, probably not. But there is a good chance that the Supreme Court’s Chevron deference decision will modify the new PFAS regulations as they make their way through the courts early next year.

References:

• “PFAS Explained,” USEPA, 2024.

• USEPA website

• American Water Works Association (AWWA) Website

• Association of Metropolitan Water Agencies (AMWA) Website

• Statement from AWWA and AMWA on a petition for judicial review of PFAS regulation - American Water Works Association. https://www.awwa.org/AWWA-Articles/statement-from-awwa-and-amwa-on-petition-for-judicial-review-of-pfas-regulation

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JD Solomon Inc. provides solutions for program development, asset management, and facilitation at the nexus of facilities, infrastructure, and the environment. Sign up for monthly updates related to our firm.

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JD Solomon served in executive leadership roles at two Fortune 500 companies before starting JD Solomon, Inc., just before the pandemic. JD is the founder of Communicating with FINESSE®, the creator of the FINESSE fishbone diagram®, and the co-creator of the SOAP criticality method©. He is the author of Communicating Reliability, Risk & Resiliency to Decision Makers: How to Get Your Boss’s Boss to Understand and Facilitating with FINESSE: A Guide to Successful Business Solutions.

Use the Strategic Plan When Communicating Big Business Presentations

The strategic plan provides a clean way to structure your presentation and resonates with decision makers.

The next time you are getting ready for a big presentation, take a look at the organization’s strategic plan. One way to structure your presentation (or report) is to use the Strategic Goals to guide three or four sentences on each topic.

The Focus Areas Are Usually the Same

Typical Strategic Goals in a corporate strategic plan usually relate to five to eight focus areas:

• Financial

• Operational Performance

• Safety

• Customer Satisfaction

• Compliance

• Environment/Sustainability

• Workforce

• Innovation

For All Types of Presentations

Whether it’s a monthly report to the Board of Directors, a business case to senior management, or a controversial project with lots of complexity and uncertainty, structuring your information topically by the strategic plan is a powerful way to reach decision makers.

Fair Warning

Here's a fair warning, though. Many organizations have weak strategic plans. That’s because they fall into the trap of creating a politically correct, public relations piece. The best plans focus the effort on how the front-line staff and operations use the plan's content.

The advice is to look at the focus areas (like the above list) and less on the weedy details of the strategic plan.

Communicate with the Strategic Plan

The tip is to communicate with the strategic plan. It's a clean way to structure your presentation or report. Using the strategic plan also resonates with decision makers because it is the organization's compass.

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JD Solomon Inc provides solutions for facilitation, asset management, and program development at the nexus of facilities, infrastructure, and the environment.  Founded by JD Solomon, Communicating with FINESSE is the community of technical professionals dedicated to being highly effective communicators and facilitators. Learn more about our publications, webinars, and workshops. Join the community for free.

Have Backup

The lead presenter and the management team are equally responsible for having backup.

It is challenging for one person to deliver every aspect of a major presentation. When the decisions are big, the lead presenter and their managers should ensure all backup firepower is present.

A Short Example

“I know you can handle it, but Phil is going anyway,” I firmly stated.

“He’s got something else going on that night at home, plus his being there will focus too much attention on the model,” Joe replied, for at least the third time.

"He's going. Final answer."

It didn't turn out to be the overkill that even I thought it might be. Backups or subject matter experts are not needed a high percentage of the time. But when you need them, you really need them.

The Lead Presenter’s Role

The lead presenters for major presentations are full-grown adults. That means the lead presenter is responsible for making sure they have sufficient backup or subject matter experts. No one should be surprised that unexpected questions or technical issues will arise.

Management’s Role

Management's role is to make sure the lead presenter does not try to be Superman or Superwoman. For many reasons, lead facilitators often think they can do the big show on their own. This is a major blind spot that creates a huge risk factor.

It's About the Receiver, Not the Sender

Remember, it's about the message receiver (decision makers), not the sender (lead presenter).

When the decisions are big–and complexity and uncertainty are high–you will present to gatekeepers, the inner circle, and the one person who will sign on to the bottom line. Match team for team.

Have Backup

Make sure all of the backup firepower is present. Management and the lead presenter share an essential role in making it happen.

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Founded by JD Solomon, Communicating with FINESSE is a not-for-profit community of technical professionals dedicated to being highly effective communicators and facilitators. Learn more about our publications, webinars, and workshops. Join the community for free.