GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2023

Status

Forthcoming

Abstract

PFAS are a class of chemicals that pose some of the most serious and multifaceted health and environmental threats of the past century. Manufactured since the 1940s, used in everyday products from non-stick cookware, to fire-fighting foams, to makeup and shaving cream, and found in even the most remote parts of the world, PFAS are ubiquitous. The most thoroughly-studied PFAS have demonstrable serious health effects that include reproductive and developmental dysfunctions, interference with the body’s hormonal and immune systems, suppression of vaccine responsiveness, and links to various types of cancers. In response to scientists’ identification of the multitude of health threats posed by exposure to PFAS, EPA has prioritized regulatory action to address those threats, announcing a whole-of-agency approach that relies on the exercise of its authority under a host of federal environmental statutes.

Despite the serious health and environmental threats posed by airborne emissions of PFAS, however, EPA has taken little to no action under the Clean Air Act (CAA). The only CAA program EPA has identified to address airborne PFAS is the one that authorizes regulation of national emission standards for hazardous air pollutants. Other regulatory mechanisms, such as the adoption of standards of performance for new sources, may also be useful.

This Article focuses on a third option, which EPA to date seems to have ignored, despite its accelerating use in other contexts—EPA’s authority under § 303 of the CAA to tackle imminent and substantial endangerment to public health, welfare, or the environment through issuance of administrative orders or the initiation of a civil suit seeking abatement of activities contributing to the endangerment. We argued that this overlooked mechanism has great potential to minimize PFAS-related exposure risks pending completion of the often lengthy processes needed to implement other regulatory programs. The fact that EPA has never used § 303 to target PFAS raises the possibility that litigants will challenge any attempt to do so by relying on the major questions doctrine (MQD). We demonstrate that such a challenge should fail both because the doctrine is inapplicable and EPA’s statutory authority to abate PFAS emissions under § 303 is clear even if the MQD does apply. Our analysis provides a template for rebutting attacks on federal agency regulatory efforts in other contexts based on the MQD.

GW Paper Series

2023-60

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