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July 12, 2022

Lynn L. Bergeson Quoted by Chemical Week in Article “Supreme Court curbs EPA’s ability to regulate power plant emissions”

The ACTA Group

On July 11, 2022, Chemical Week quoted Lynn L. Bergeson, President, The Acta Group (Acta®), regarding a Supreme Court ruling that limits the US Environmental Protection Agency’s (EPA) authority to combat climate change by regulating emissions from existing power plants.

Legal experts say the decision could have broader implications for EPA’s ability to regulate chemicals. “The Court seems to have put a name to what some believe is a pretext for conservative courts to blunt agency action on the grounds the text does not allow for a particular action,” Lynn Bergeson, managing partner at Bergeson & Campbell PC, tells CW. “Could interests adverse to EPA’s current implementation of TSCA use the newly minted ‘major questions doctrine [MQD, which holds that an administrative agency can only regulate matters of importance if explicitly empowered]’ to challenge TSCA final rules? Absolutely and they probably will.”

Provisions under the 2016 TSCA are less likely to be a target, but several “recurrent” themes relating to EPA’s conflation of “risk” with “hazard” could invite a West Virginia MQD challenge, Bergeson adds. “Any order banning a chemical—HBCD, asbestos, or final SNUR imposing restrictions based on a flawed review of the risk [not hazard] of a new chemical, or a final ‘whole chemical’ determination that is reviewable as the concept of ‘whole chemical’ seems anathema to the concept to conditions of use and ‘risk’ would, to my eye, be fair game.”

A Section 21 petition filed on 16 June “interestingly” presents a basis to consider the application of MQD to TSCA,” Bergeson notes. “Petitioners, Climate Protection, and Restoration Initiative [CPR Initiative] petitioned EPA to phase out greenhouse-gas [GHG] emissions on the grounds that these emissions present an unreasonable risk of injury to health and the environment. If EPA were to pursue the relief requested, one could envision a MQD objection. If Congress intended [the Lautenberg act] to address GHG emissions, why did it not say so?”

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