WASHINGTON (CN) — A D.C. Circuit panel unanimously ruled on Tuesday that the U.S. Environmental Protection Agency must regulate the toxic chemical perchlorate in drinking water and was wrong to withdraw a previous decision to do so.
The three-judge panel agreed with the National Resources Defense Council that the chemical poses clear health risks to the public that the agency ignored when it withdrew a 2011 decision to regulate it.
Senior U.S. Circuit Judge David Sentelle, a Ronald Reagan appointee, wrote the Safe Water Drinking Act only gives the EPA the authority to create regulations, not to strike them down.
“To read into the statute another course of action – one that allows EPA to withdraw its regulatory determination entirely and decide that it ‘shall not’ regulate – would be to contravene the statute’s clear language,” the 31-page ruling states.
According to the National Institute of Health, perchlorate is toxic to humans when consumed in large amounts, particularly for pregnant women and children.
The NIH found that frequent exposure to the chemical can decrease levels of an important thyroid hormone that is necessary for fetal brain development, which may lead to developmental issues after birth.
In 2020, the EPA determined that perchlorate – which is used to manufacture fireworks, explosives and rocket fuel – was not prevalent enough to cause concern. The agency said regulation “does not present a meaningful opportunity for health risk reduction,” and therefore it did not have the authority to regulate the chemical.
The agency originally decided to regulate perchlorate in 2011 under the Obama administration but failed to propose a standard by the deadline in 2016.
The National Resource Defense Council sued the agency after the deadline passed to push it to regulate, but agreed to extend the deadline until 2020, when the EPA decided to withdraw the regulation outright.
Erik Olson, senior strategic director for health at the NRDC, applauded the appeals court’s decision in a statement Tuesday.
“After more than a decade of delay and litigation, EPA now must issue a drinking water standard for this widespread and dangerous contaminant,” Olson said. “It’s about time.”
According to a 2009 study by the EPA, perchlorate has been detected in about 5% of the nation’s large public water system in 26 states and Puerto Rico.
Sentelle noted in the ruling that the Safe Water Drinking Act has an “anti-backsliding” provision that requires that any revision must “maintain … or provide for greater health protections.”
He was joined on the panel by Senior U.S. Circuit Judge David Tatel, a Bill Clinton appointee, and U.S. Circuit Judge Florence Pan, an appointee of President Joe Biden.
Pan agreed with Sentelle and Tatel, but went even further in her concurring opinion, arguing that the agency’s decision not to regulate perchlorate was “arbitrary, capricious, and otherwise not in accordance with law.”
She pointed to the danger perchlorate poses to children’s mental development as reason enough to consider the chemical a public health risk.
“A decrease in average IQ of even one point is undoubtedly an ‘adverse effect on the health of persons,’” Pan wrote.
The court remanded the case to the agency for further proceedings to create new regulations for the chemical.
The EPA did not respond to a request for comment before publication.
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