On March 21, 2025, the U.S. Court of Appeals for the District of Columbia Circuit heard oral argument in a case challenging the U.S. Environmental Protection Agency’s (EPA) May 3, 2024, final rule amending the procedural framework rule for conducting risk evaluations under the Toxic Substances Control Act (TSCA). United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW) v. EPA, Consolidated Case No. 24-1151. If you have a couple of hours to spare, listening to the argument is well worth the time. The court was uniquely curious about the litigants’ request for a remand and probed deeply into the difference between a remand and a vacatur. Judge Rao bluntly questioned on what authority the court could rely to remand the case. An answer was not forthcoming, fueling speculation the court will rule on the merits.
As reported in our May 14, 2024, memorandum, EPA’s final rule revised certain aspects of the procedural framework for conducting risk evaluations to, according to EPA, align better with the statutory text and applicable court decisions, reflect its experience implementing the risk evaluation program following the 2016 Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg) TSCA amendments, and allow for consideration of future scientific advances in the risk evaluation process without the need to amend the procedural rule further. After EPA issued the final rule in May 2024, industry and non-governmental organizations (NGO) filed multiple challenges. USW, the International Association of Machinists and Aerospace Workers (IAM), and Worksafe challenged EPA’s authority to consider the use of personal protective equipment (PPE) when evaluating the risk posed by a chemical to workers. The Texas Chemistry Council (TCC) and the American Chemistry Council (ACC) maintained that EPA’s position that TSCA requires review of every possible use of a chemical and that risk determinations must be based on the chemical as a whole means that EPA is more likely to find unreasonable risk. TCC and ACC also argued that EPA’s failure to consider compliance with PPE requirements leads to faulty conclusions on chemical exposure.
On February 5, 2025, EPA filed a motion to postpone the oral argument scheduled for March 21, 2025, and to hold the case in abeyance for 90 days. The court denied EPA’s motion on February 6, 2025. On March 10, 2025, EPA filed a motion for voluntary remand and a renewed motion to hold the case in abeyance. According to EPA, it has determined that it wishes to reconsider the 2024 rule “by initiating notice-and-comment rulemaking as soon as possible.” EPA states that remand will allow it to:
- Reconsider the Agency’s approach of making a single risk determination on the chemical substance, “rather than determining unreasonable risk on a condition-of-use by condition-of-use basis”;
- Reconsider the Agency’s approach of requiring inclusion of all conditions of use (COU) in each TSCA risk evaluation;
- Reevaluate how it considers PPE when making risk determinations; and
- Assess its decision to include “‘overburdened communities’ in the definition of ‘potentially exposed or susceptible subpopulations’ and to consider whether no examples, or additional examples, should be included in the regulatory definition.”
On March 10, 2025, EPA also issued a press release announcing its intent to reconsider the final rule. According to the press release, EPA will initiate a rulemaking “that will ensure the agency can efficiently and effectively protect human health and the environment and follow the law.” More information on EPA’s announcement is available in our March 14, 2025, memorandum.
During oral argument, the court asked why it should grant EPA’s request that the final rule be remanded. According to EPA, the court should not rule on the case when the Agency plans to revise and issue a new final rule by April 2026. The court expressed skepticism that EPA can complete a rulemaking so quickly. The court also questioned when TSCA requires that COUs be identified, whether making a single risk determination for a chemical is consistent with TSCA, and whether USW has standing to challenge the May 2024 rule’s provisions regarding PPE.
Commentary
The oral argument seemed not to go according to plan. The much-anticipated exchange focused on a variety of issues, including, surprisingly, whether the court had authority to send the rule back to EPA in the absence of a dismissal of the lawsuit or EPA conceding error of some sort. For non-litigators, the exchange was a refreshingly candid consideration of questions that intuitively came to mind in reading the briefs. The gist of the exchange seemed to reflect the panel’s discomfort with remand and a desire to rule on the merits of at least some of the key issues before the court, including the legitimacy of a single risk determination and whether EPA must consider all COUs in a risk evaluation. The ripeness of the rule as it applies to allowing EPA not to consider PPE in risk evaluation was noted, but not explained. For TSCA buffs, the hearing had all the makings of a Netflix drama. Now we wait for more episodes to drop.