EPA Still Has Authority To Regulate In The Face Of Uncertainty

Last week, in Chamber of Commerce v. EPA, the D.C. Circuit Court of Appeals rejected challenges to EPA’s decision to list PFOA and PFOS, the two most prominent PFAS compounds, as hazardous substances under CERCLA. It’s an important decision, and not just because pressure to clean up sites contaminated with PFAS seems to be increasing every day.

It’s also important because the opinion contains an unqualified affirmation of EPA’s authority to regulate under uncertainty. As I’ve noted previously in this space, EPA’s authority to regulate under uncertainty was originally established in Ethyl Corp. v. EPA. It has not been seriously questioned in the 50 years since Ethyl Corp. v. EPA was decided.