Publication of New EPA Rule Designating PFOA and PFOS as CERCLA Hazardous Substances Starts the Clock for Potential Challenges

Apologies for forgetting to cross-post this Alert on this blog last month!

On May 8, 2024, the U.S. Environmental Protection Agency (EPA) published in the Federal Register its final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA). The final rule, which EPA announced on April 17, 2024, and which will take effect July 8, 2024, is the first time EPA has ever invoked CERCLA Section 102 to designate a new substance as a hazardous substance via regulation. The publication of the rule starts the clock for any challenges to the rule, giving industry and other parties 90 days from publication to file any applicable legal challenges. Publication also triggers a congressional review period under the Congressional Review Act, giving Congress 60 “legislative days” to review the rule. EPA’s decision to release the rule now is noteworthy in that the review period likely will expire before the general election in November and potential changes in control of the House, Senate and White House.

The full Alert is available here.

#PFAS – Maryland continues to legislate solutions to its PFAS concerns – Playgrounds now covered!

In early 2022, the Governor of Maryland signed SB 273/HB 275, Chapter 138, 2022 into law (the “22 Act”)  to regulate per- and polyfluoroalkyl substances (PFAS) in several categories of consumer products. For the 22 Act –


The 22 Act became operational on January 1, 2024 and focuses on the following key areas:

  • Class B fire-fighting foam (FFF), rugs and carpets (note, second hand rugs are exempt), plastic disposable gloves used in commercial or institutional food service, as well as certain food packages and food packaging substantially composed of paper, paperboard and other materials derived from plant fiber are now prohibited from including intentionally added PFAS;
  • Forbids the disposal of Class B firefighting foam containing intentionally added PFAS;
  • Mandates that the sellers of personal protective equipment (PPE) for firefighting equipment that contains PFAS are now required to furnish a written notice to purchasers indicating that the PPE contains PFAS and the purpose of having such chemicals in these products.
  • There are some timing exceptions under the 22 Act for airports, ports, refineries and chemical plants allowing for later compliance beyond 1-1-24 depending on the type of operation and the 22 Act also requires that manufacturers of the aforesaid products are required to establish an annual certificate of compliance to attest to their applicable compliance.

The 22 Act defines PFAS as “a class of fluorinated organic chemicals that contain at least one fully fluorinated carbon atom”.

In addition to the 22 Act, on May 9, 2024, the Governor signed HB 1147 (Chapter 488) (the “24 Act”) into law to regulate lead and PFAS chemicals in playground surfacing materials (artificial turfs), which further adds to the impact of the 22 Act noted above.

The 24 Act amends Code of Maryland Environment Title 6 by adding subtitle 16A -‘Playground Surfacing Materials’.

According to the definitions in the 24 Act, ‘PFAS chemicals’, ‘Playground’ and ‘Playground surfacing materials’ have the following meanings:

  • ‘PFAS chemicals’ means a class of fluorinating organic chemicals that contain at least one fully fluorinated carbon atom, including per- and polyfluoroalkyl substances (PFAS);
  • ‘Playground’ is defined as a public outdoor recreation area for children equipped with one or more play structures; and
  • ‘Playground surfacing materials’ means products, materials, or substances used or installed on the ground surface of a playground that come into direct contact with a person.

The 24 Act requires that from and after October 1, 2024, that playground surface materials NOT contain any intentionally added PFAS. Moreover, the 24 Act prohibits a person from installing, supplying, selling, soliciting, or offering for sale playground surfacing materials that contain a certain concentration of lead or a component product, material, or substance to which PFAS chemicals were previously intentionally added for certain purposes and also prohibits a county, municipality, or unit of local government from adopting any ordinance, rule, or regulation related to playground surfacing materials that is less stringent than of the 24 Act.

Duane Morris has an active PFAS team to help organizations and individuals plan, respond to and execute on PFAS issues and initiatives in order to manage risk, ensure compliance and minimize litigation risk. We are available to discuss your concerns and objectives and how new rules, regulations and rulings might apply to you.

For More Information:

If you have any questions about this post, please contact Lindsay Ann BrownLori A. Mills, Kelly Bonner, Brad A. Molotsky, any of the attorneys in our PFAS Group or the attorney in the firm with whom you are regularly in contact.

PFAS – Connecticut Ban on PFAS in fire fighting foam and food packaging in real time

In 2019, Governor Ned Lamont held a bill signing ceremony at the edge of the Farmington River in Windsor to commemorate the adoption of a new state law banning the use of firefighting foam and food packaging that contains per- and polyfluoroalkyl substances. Commonly known as PFAS, the large group of man-made “forever chemicals” are used in a variety of materials and products around the world.

Specifically, per the Governor’s office, Public Act 21-191An Act Concerning the Use of PFAS Substances in Class B Firefighting Foam, banned the use of PFAS-containing firefighting foam, or “AFFF,” effective October 1, 2021.  Thereafter, AFFF was no longer permitted for use in training activities. Additionally, the law also phased out PFAS-containing food packaging by  the end of 2023.  The Act is now operative on both fronts and has taken hold.

The Act was an attempt to operationalize the Governor’s 2019 PFAS Action Plan: with a stated goal to minimize future releases of PFAS to the environment, and minimize human health risk for Connecticut residents caused by PFAS. The action plan was developed by the Connecticut Interagency PFAS Task Force, which was established in 2019 by Governor Lamont and led by the Department of Energy and Environmental Protection and the Department of Public Health, with assistance from many other agencies, including the state Department of Emergency Services and Public Protection.

Public Act 21-191 makes mandatory a takeback program the Department of Energy and Environmental Protection had already been engaged in to collect AFFF foam from municipal fire departments at no charge. The takeback program is funded by a $2 million allocation approved by the State Bond Commission in July 2020. As of late 2022,  over 170 fire departments have requested pickups of their existing foam inventories. A total of 50 municipalities have completed the takeback program, with more than 6,000 gallons of PFAS-containing foam collected thus far.

Connecticut’s Public Act 21-191 is being used as a model in other states looking to reduce and/or eliminate PFAS in fire fighting foam and in food packaging.  The Act gave various manufacturers time to modify their approach to including PFAS in their products and now, 4 years later, the applicable bans are being enforced in fire fighting foam and in food packaging.

Duane Morris has an active PFAS team to help organizations and individuals plan, respond to and execute on PFAS issues and initiatives in order to manage risk, ensure compliance and minimize litigation risk. We are available to discuss your concerns and objectives and how new rules, regulations and rulings might apply to you.

For More Information:

If you have any questions about this post, please contact Lindsay Ann BrownLori A. Mills, Kelly Bonner, Brad A. Molotsky, any of the attorneys in our PFAS Group or the attorney in the firm with whom you are regularly in contact.

PFAS – Colorado enacts PFAS Ban in various household items and Fire Fighting Foam

On May 1, 2024, Colorado enacted the “Perfluoroalkyl and Polyfluoroalkyl Chemicals Consumer Protection Act” (the “PPCCA“) to establish a regulatory scheme that prohibits the sale or distribution of certain products that contain intentionally added perfluoroalkyl and polyfluoroalkyl chemicals (PFAS).

The full bill – SB 081 can be found here

As of January 1, 2024, the PPCCPA, restricts the sale and distribution of each  of the following products in Colorado if the products contain  intentionally added PFAS chemicals:

  • Carpets or rugs;
  • Fabric treatments;
  • Food packaging;
  • Juvenile products; and
  • Oil and gas products.

In addition, after January 1, 2024, a manufacturer of cookware sold in Colorado that contains intentionally added PFAS chemicals in the handle of the product or in any product surface that comes into contact with food, foodstuffs, or beverages is required to:

  • List the presence of PFAS chemicals on the product label of the cookware; and
  • Include a statement on the product label of the cookware that directs the consumer to a website with information about why PFAS chemicals were intentionally added to the product.

Further, per the PPCCA, after January 1, 2024, a manufacturer of cookware is prohibited from making a statement that the cookware is free of PFAS chemicals unless no individual PFAS chemical is intentionally added to the cookware.

On and after January 1, 2025, the sale or distribution in Colorado of any products in the following product categories is prohibited if the products contain intentionally added PFAS chemicals:

  • Cosmetics;
  • Indoor textile furnishings; and
  • Indoor upholstered furniture.

On and after January 1, 2027, the sale or distribution in Colorado of any of the products in the following product categories is prohibited if the products contain intentionally added PFAS chemicals:

  • Outdoor textile furnishings; and
  • Outdoor upholstered furniture.

Moreover, manufacturers and distributors should also be aware that the PCCAA includes products that do not contain intentionally added PFAS chemicals in the definition of “environmentally preferable products” for the purposes of state agency procurement.

The PPCCA also:

  • Requires a person that uses class B firefighting foam that contains intentionally added PFAS chemicals (firefighting foam) to prohibit a release of the firefighting foam into the environment, fully contain the firefighting foam during its use, safely store the firefighting foam, and report certain information to the water quality spills hotline within 24 hours if there is a release of the firefighting foam into the environment;
  • Requires a person that uses firefighting foam to report its use to the water quality spills hotline within 24 hours after the use;
  • Authorizes the attorney general to enforce laws regulating firefighting foams that contain PFAS chemicals; and
  • Extends to January 1, 2024, the effective date of an existing restriction on the use of firefighting foam that contains intentionally added PFAS chemicals at certain airports.

Duane Morris has an active PFAS team to help organizations and individuals plan, respond to and execute on PFAS issues and initiatives in order to manage risk, ensure compliance and minimize litigation risk. We are available to discuss your concerns and objectives and how new rules, regulations and rulings might apply to you.

For More Information:

If you have any questions about this post, please contact Lindsay Ann Brown, Lori A. MillsBrad A. Molotsky, any of the attorneys in our PFAS Group or the attorney in the firm with whom you are regularly in contact.

Duane Morris Kicks Off PFAS Webinar Series

Earlier this week, I had the pleasure of moderating our inaugural webinar session on PFAS – PFAS What You Need to Know.  I was joined by fellow Partner Lindsay Brown of our Cherry Hill office, Larry Gottlieb, President and Chief Innovation Officer at ResinTech, and Colleen Costello and Thomas Geiger of Sanborn.

We spent the hour discussing many things PFAS related including, that in the panelists experience, the number of people and the knowledge base and visibility of PFAS in the environment and in products we use in our offices and homes has increased markedly in the last 3-5 years.  Despite this consumer and legal focus in the PFAS arena, it was felt that the medical profession, as a whole, has not focused on the impact to their patients and how to treat PFAS in the blood stream as of yet in an adequate way.

We reviewed how PFAS is a man-made substance that was created in the United States in a lab in the 1930’s and that it worked for its intended purpose – meaning, it is a very strong chemical and has incredibly strong bonds; it repels water as it was intended and it works well.  The unintended consequences of how far reaching the chemicals would flow and how quickly they would move in water and how they would find their way into various products in the home and the work place and what lingering health impacts to fish, animals and humans is still playing itself out in numerous studies that have been conducted over the last 7 years and counting. A massive uptake in litigation and class action lawsuits have proliferated over the past decade against the original 20 manufacturers of PFAS and these numbers continue to rise.

While the panelists pointed out that due to the danger of the chemicals, some PFAS have been phased out, they also noted that according to the National Institute of Environmental Health there are over 12,000 different types of PFAS – including PFOA (perfluorooctanoic acid) and PFOS (perfluorooctanesulfonic acid – an 8-carbon chain), many of which continue to be unregulated at the federal and state level.

We discussed various industries that have utilized PFAS in their products or in their manufacturing processes in the past including fire fighting foam, fire protection equipment, plastic manufacturing, synthetic fiber manufacturing, metal finishing and coating, textile mills, furniture manufacturing, leather and tanning operations, paper manufacturing, at airports, and in various consumer goods including cosmetics, fabric treatments, dental floss, toothpaste, toilet paper, ski wax and cookware, grease resistant paper, microwave popcorn bags, pizza boxes, candy wrappers as well as in resistant coatings on carpet, upholstery and furniture and plastic wrapping for food.

So what is the big deal?  The group discussed that the big deal is that the  PFAS family of chemical compounds do not degrade in the environment, whether in water or in soil and are now found in fish, animals and humans around the globe. Given its strength, PFAS tends to bioaccumulate in humans and animals – meaning it does not leave our blood stream once it enters it and it accumulates as we continue to be exposed to more and more PFAS.

Some of the potential health impacts that the National Institute of Health and the EPA have focused on include developmental delays, hormonal imbalances, birth defects, testicular and kidney cancers, liver issues and endocrine disruption.

The panel discussed how PFAS has historically been measured, where it has been measured at all.  In many chemicals, measurements are done in part per million (PPM) or, in some instances, parts per billion (PPB) but that the EPA has determined that quantities of PFAS that exceed 4 part per trillion (PPT) are dangerous to humans if consumed in drinking water. A useful analogy provided by the panel is that we are talking about a danger level at a tea spoon worth of PFAS in 20 Olympic sized pools was

While awaiting EPA regulations on drinking water standards, many states enacted their own standards of 50 PPT or 15-20 PPT and these states will now need to re-evaluate and revise their standard in light of the recently announced EPA standard of 4 PPT.  States that have no PFAS standard will now also be subject to the federal standard of 4 PPT.

We also discussed that under the Toxic Release Inventory (TRI) Reporting requirements, new reporting obligations have been enacted which are now in effect and which will require 189 different PFAS to report under its required reporting regime.  Historically, reporting was triggered from 100 pounds of PFAS or more but, starting in 2025, 7 new PFAS constituents have been added to the list of “chemicals of special concern” where no de minimis quantity exemption will apply.  Other reporting rules for PFAS under the Toxic Substances Control Act of 1976 (TSCA)  have also been implemented which will require certain importers and manufacturers of products with PFAS in the products to review their records and look back to 2011 and report on the amount of PFAS being used in such products.

Furthermore, we chatted about remediation techniques, including trapping PFAS at receptors and point sources to limit the amount of PFAS escaping into our ground water, as well as the “pump and treat technique” of such water and how to address impacted group water via granular activated carbon (GAC) and via ion exchange (IX) but, that these techniques, while very efficient at trapping the PFAS, do not eradicate it rather they merely separate it from the impacted water.  To truly eradicate the PFAS and not create off gassing into the air that will then likely impact surrounding soil around the off gassing, one would need to incinerate the PFAS to a temperature of approximately 1750 F (noting most incinerators do not get close to this temperature) in order to cause the PFAS to break down into its constituent elements of carbon and fluorine.  Not to give up hope, many technologist are focusing on how to remove the PFAS from various media (i.e., water, soil, etc.), and then how to destroy the PFAS in bulk using innovative techniques that include plasma, hot plasma, supercritical water oxidation (SCWO) and ionic gasification.

We wrapped up the hour touching on how the EPA has just, as of last week, declared certain PFAS to be a “hazardous substance” under CERCLA and, with this designation, under the law, strict liability will attach to the producer or seller of the product or for the owner of the site or building or use of the site or building that has the PFAS issue, irrespective of fault.  As such we all agreed that a focus on risk mitigation, insurance, allocation of who bears what risk in a sale, lease, purchase and product delivery system are key areas to consider as the law continues to evolve and class action lawsuits continue to proliferate in the arena.

For more information on PFAS, the panel’s favorites include, the EPA’s PFAS site and PFAS toolkit, the ITRC guide on PFAS and the NJDEP site and its PFAS tab.

Duane Morris has an active PFAS team to help organizations and individuals plan, respond to and execute on PFAS issues and initiatives in order to manage risk, ensure compliance and minimize litigation risk. We are available to discuss your concerns and objectives and how new rules, regulations and rulings might apply to you.

For More Information

If you have any questions about this Alert, please contact Lindsay Ann Brown, Lori A. MillsBrad A. Molotsky, any of the attorneys in our PFAS Group or the attorney in the firm with whom you are regularly in contact.

EPA Signs Final Rule to Regulate Six PFAS in Drinking Water

On April 8, 2024, EPA Administrator Michael Regan signed a final rule setting limits for six PFAS in drinking water. The rule, which will become effective 60 days after publication in the Federal Register, establishes maximum contaminant levels (MCLs) for PFOA (4 ppt), PFOS (4 ppt), PFHxS (10 ppt), PFNA (10 ppt) and HFPO-DA (10 ppt), and will use a hazard index MCL of 1 to regulate mixtures of PFHxS, PFNA, HFPO-DA and PFBS. The rule will preempt any state standards that are less stringent than the new EPA rule.

The full Alert on this new rule is available HERE.

EPA Proposes Two Rules That May Increase PFAS Corrective Action at RCRA-Permitted Facilities and the Risk of Citizen Suits

On January 31, 2024, U.S. Environmental Protection Agency (EPA) Administrator Michael S. Regan signed two proposed rules under the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984. The first, “Listing of Specific PFAS as Hazardous Constituents,” proposes to add nine per- and polyfluoroalkyl substances (PFAS) to the list of RCRA hazardous constituents. If listed, EPA would routinely consider those nine PFAS in assessments and, where necessary, in any corrective action at any facility that treats, stores or disposes of hazardous waste (referred to as TSDFs) or that includes such a facility as part of its manufacturing operations. Further, EPA’s listing of these nine PFAS as hazardous constituents brings these substances a step closer to being listed as hazardous waste under the RCRA and as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund.

The second proposed rule, “Definition of Hazardous Waste Applicable to Corrective Action for Releases from Solid Waste Management Units,” aims to “clarify” that TSDFs are required to conduct corrective action to address releases of “hazardous constituents” and any substance meeting the statutory definition of “hazardous waste,” see 42 U.S.C. § 6903(5), regardless of whether that substance has been specifically listed as a hazardous waste in the regulations. While this rule does not address PFAS directly, if adopted, it would bolster EPA’s claim of authority to use RCRA corrective action at permitted facilities to address not only listed hazardous waste and constituents—including the nine PFAS identified in the first proposed rule—but also emerging contaminants, such as unlisted PFAS, if it can be shown that they meet the statutory definition of “hazardous waste.” In addition to increasing the risk of EPA enforcement, adoption of these rules (and potential further listing of these substances as hazardous waste) increases the risk of citizen suits against TSDFs or others alleging permit or regulatory violations or alleging that an imminent and substantial endangerment to health or the environment exists.

Click here to view the full ALERT on the Duane Morris website.

EPA Takes Another Step Toward Regulation of PFAS Air Emissions

EPA Takes Another Step Toward Regulation of PFAS Air Emissions

Although not yet enforceable, the release of draft test method OTM-50 by the U.S. Environmental Protection Agency (EPA) marks another step toward the regulation of per- and polyfluoroalkyl substances (PFAS) in air emissions, as it will facilitate the gathering of data and refinement of test methods necessary to develop air emissions standards. As part of its release, EPA Assistant Administrator for Research and Development Chris Frey noted that OTM-50 is intended to apply to chemical manufacturers, industrial users of PFAS and PFAS-destruction technologies. Its applicability is likely to broaden into other industries, however, as EPA’s understanding of PFAS in air emissions evolves. EPA also published a related FAQ.

While much of the recent focus on PFAS exposure has centered on water contamination and household products, EPA has increasingly set its sights on air emissions as a target route of exposure requiring regulation. Indeed, one of the central missions laid out in EPA’s 2021 “PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024” is to build the technical foundation necessary to regulate PFAS in air emissions.

In line with this objective, EPA released the draft test method in January to measure 30 volatile, nonpolar fluorinated compounds (VFCs), including certain PFAS, in air emissions released from stationary sources. The draft test method, titled “Other Test Method 50 (OTM-50): Sampling and Analysis of Volatile Fluorinated Compounds from Stationary Sources Using Passivated Stainless-Steel Canisters,” builds on OTM-45, a test method released by EPA in 2021 and used to measure approximately 50 polar (semi-volatile and particulate-bound) PFAS in air emissions.

The EPA summary document accompanying OTM-50 acknowledges the current lack of standardized methods to measure PFAS and VFCs in air emissions. This invites a host of issues, including “inconsistent findings, incomparable measurements, and lack of coordination between policy makers, facilities, and control technology development.” With the release of OTM-50, EPA aims to provide a consistent testing method that it believes reflects current best practices to sample and analyze certain PFAS and VFC targets from stationary sources, including vents and stacks.

EPA had indicated in December that it was aiming to release OTM-50 together with its updated, interim PFAS destruction and disposal guidance. However, the guidance remains under review by the White House Office of Management and Budget. OTM-50 may be particularly useful in measuring industrial compounds and products of incomplete combustion/destruction tied to incinerator emissions. Incineration is a method being considered by EPA as part of its interim PFAS destruction and disposal guidance.

EPA’s summary document notes that its release of OTM-50 is not an endorsement or a regulatory approval of the test method and that OTM-50 may ultimately be implemented by EPA, state or local authorities through independent actions. Better detection of air emissions through reliable testing methods, including OTM-50, will only encourage the eventual regulation of air emissions, particularly around incineration and combustion of PFAS.

Duane Morris has an active PFAS Team to help organizations and individuals plan, respond to, and execute on your PFAS issues and initiatives. We would be happy to discuss your concerns and objectives and how new rules, regulations and rulings might apply to you.

For More Information

If you have any questions about this post, please contact  Lindsay Ann Brown or Louis C. Formisano, the authors, Sharon Caffrey, Brad A. Molotsky, Alice Shanahan,  Seth Cooley, Alyson Walker Lotman, Lori Mills or Kelly Bonner, the attorneys in our PFAS Working Group or the attorney in the firm with whom you are regularly in contact.

Agencies and Regulated Community Brace for Changes in Administrative Law and a Potential “Flood of Litigation”

Agencies and Regulated Community Brace for Changes in Administrative Law and a Potential “Flood of Litigation”

Recent oral argument before the Supreme Court of the United States has raised significant questions concerning the Chevron doctrine, a 40-year-old ruling that requires federal courts to defer to an agency’s reasonable interpretation of certain statutory provisions that Congress charged the agency with implementing. Because a majority of the Supreme Court appears inclined to overturn or at least modify that doctrine, many in the regulated community are bracing for potentially significant changes in the administration of regulatory law. Still others are warning that there may be a “flood of litigation” seeking to overturn prior decisions that relied on the doctrine. The Supreme Court’s decision on the issue is expected before July 2024.

Chevron History and the Debate

The doctrine of Chevron deference was first announced by the Supreme Court in 1984 in the matter Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 83. Pursuant to the doctrine, if Congress charges an agency with implementing a statute, and that statute is silent or ambiguous with respect to a specific issue, the court should defer to an agency’s reasonable interpretation of the statute as it pertains to that issue.

Proponents of the doctrine claim it fosters separation of powers because interpretation of an ambiguous statute “requires the formulation of policy.” If Congress explicitly or implicitly delegated policymaking authority to the agency, the court should defer to the reasonable judgment of the agency rather than imposing its own policy preferences. According to proponents of the doctrine, agencies are better suited to make such policy decisions because they are viewed as experts in their particular field and they are accountable to an elected president.

Opponents of Chevron, however, claim the opposite. They claim Chevron should be overturned because the doctrine violates Article III of the Constitution and the power of federal judges to interpret the law. According to them, Chevron has for years been wrongly treating legal questions as policy questions and reallocating judicial authority to the agencies. Opponents argue that, in cases where an agency is not involved, there is no question that the court has the duty to interpret ambiguous statutory provisions. Absent an express delegation of that duty to the agency, the same analysis should apply in cases where an agency is involved.

Proponents and opponents of the doctrine similarly differ on whether Chevron promotes or destroys uniformity in the law. Proponents of the doctrine claim Chevron promotes uniformity by having a singular entity―the agency―decide on the appropriate implementation of a statute. Absent Chevron, such decisions would be subject to disputes among the lower courts, creating different rules in different parts of the country for regulated parties. Opponents claim Chevron facilitates “flip-flopping,” with agency rules being subject to change each time a new administration is ushered into office.

Recent Supreme Court Argument

It appears the Supreme Court is poised to overturn or modify the application of Chevron deference. On January 17, 2024, the Court heard oral argument in two cases, Loper Bright Enterprises, Inc. v. Raimondo and Relentless Inc. v. Department of Commerce, which challenge a National Marine Fisheries Services (NMFS) rule implemented under the Magnuson-Stevens Act. The act authorizes the NMFS to require fishing vessels to carry federal observers but it is silent on the issue of whether those vessels should be required to pay the salaries of the observers. The NMFS promulgated a rule that required the vessels to pay these salaries. Plaintiffs brought suit claiming the rule exceeded NMFS’s statutory authority. Applying the Chevron deference, the district courts in each case upheld the rule and the circuit courts affirmed. The Supreme Court granted certiorari to decide whether it should overturn or modify the doctrine of Chevron deference.

During three and a half hours of oral argument, Justices Neil Gorsuch, Samuel Alito and Brett Kavanaugh all appeared to favor overturning Chevron with comments supporting the notion that Chevron violates that traditional separation of powers, impermissibly tilting the balance of power to the executive branch, and that application of the doctrine fosters instability by allowing changes “every four to eight years when a new administration comes in.” Comments from Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, on the other hand, appeared to be in favor a decision that will preserve Chevron, commenting, inter alia, that deference to the implementing agency most aligns with congressional intent. Chief Justice John Roberts and Justices Amy Coney Barrett and Clarence Thomas were more difficult to read, expressing reservation about overturning the doctrine, particularly whether it would “invit[e] a flood of litigation.”

Implications for Overturning or Modifying Chevron

In the event Chevron is overturned, one of the biggest unanswered questions is the fate of prior regulations and decisions that relied upon the doctrine. Petitioners in Loper and Relentless argued that, under principles of stare decisis, prior decisions likely would remain intact, since the ultimate holding in those cases was the agency’s action was lawful. Moreover, if the Court decides to overturn Chevron, it could fashion a prospective ruling that leaves any past decisions in place. Not all of the justices appeared mollified by petitioners’ response to these concerns.

Obviously, it remains to be seen whether the Court will overturn, modify or affirm Chevron. However, most commentators agree that some change is in the cards, and any change is likely to usher in a period of uncertainty and challenge―especially for more complex and detailed regulatory programs, such as those implemented by the Centers for Medicare and Medicaid Services, Environmental Protection Agency, Food and Drug Administration, Department of Health and Human Services, Consumer Product Safety Commission, Federal Trade Commission, Board of Immigration Appeals and Internal Revenue Service, to name just a few.

Congressional Oversight of Rulemaking

While the Supreme Court is grappling with questions of Chevron deference and separation of powers, in Congress, a group of lawmakers is considering options to expand congressional oversight of rulemaking by the executive branch. On January 9, 2024, the Government Accountability Office issued a revised report, “Options for Enhancing Congressional Oversight of Rulemaking and Establishing an Office of Legal Counsel,” that evaluates options for enhanced oversight of agency action, including creating a new Congressional Office of Regulatory Review. That report warns that increased congressional oversight of agency rulemaking will likely carry burdens of increased costs, inefficiencies and duplication of efforts.

For More Information

If you have any questions about this Alert, please contact Sharon Caffrey, Lindsay Brown, any of the attorneys in our Trial Practice Group or the attorney in the firm with whom you are regularly in contact.

Class Action Suit Alleging Deceptive Marketing of PFAS-Containing Mascaras Dismissed in New York Federal Court

On September 30, 2023, the US District Court for the Southern District of New York dismissed a putative class action in which plaintiffs claimed they would not have purchased or paid a premium price for certain waterproof mascaras had they known of the presence of per- and polyfluoroalkyl substances (“PFAS”).

In a 22-page opinion, the court held that plaintiffs failed to sufficiently allege that the mascaras they individually purchased actually contained PFAS, or that there was a material risk that they did; thus, plaintiffs could not establish an actual injury.

To read the full text of this blog post by Duane Morris attorney Kelly Bonner, please visit the Duane Morris Fashion,  Retail and Consumer Branded Products Blog.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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