(CN) – A Ninth Circuit panel hinted Thursday it might toss parts of Trump administration rules for evaluating 80,000 toxic chemicals, allegedly written to minimize the chemicals' health risks so they won't be restricted or banned.
U.S. Circuit Judge Michelle Friedland appeared frustrated during the hearing in Seattle, when an attorney for the U.S. Environmental Protection Agency said the court can't review the EPA's framework rules. The rules allow the agency to exclude some forms of chemical exposure when evaluating the chemical's health and environmental risks.
"If the worst one is the pacifier, but once you add the pesticides and the exposure from the air conditioning at school or whatever, the kid's going to get cancer," said Friedland, a Barack Obama appointee. "Doesn't it matter if there are the other uses that are going to add to it and actually tip you over some medical threshold the pacifier itself wouldn't?"
In 2017, the EPA issued two rules under the Toxic Substances Control Act. The rules established the processes by which the EPA prioritizes chemicals for risk assessments. The EPA decides whether to ban, restrict, or otherwise regulate a chemical based on the results.
Risk is determined by the toxicity of a chemical combined with a person's level of exposure to the chemical, according to a coalition of environmental and public health groups led by Safer Chemicals, Healthy Families, which petitioned the Ninth Circuit for review in August 2017.
Other petitioners include the Sierra Club, Union of Concerned Scientists, Environmental Working Group and Learning Disabilities Association of America.
The EPA issued proposed framework rules in January 2017, which the petitioners say complied with the Toxic Substances Control Act's requirement that the agency "comprehensively" evaluate a chemical's hazards and exposures. But the agency reversed course that spring, after the Trump administration appointed a "former chemical-industry advocate" to the EPA.
According to the petitioners, the appointee gave the EPA "unfettered discretion to exclude known or reasonably foreseen exposure pathways from consideration" so as to "exonerate chemicals based on only a partial review of known or reasonably foreseen uses and exposures."
People are often exposed to a chemical in multiple ways, and the petitioners say excluding exposure routes leads to an underestimation of a chemical's risks. Citing the act, they contend the EPA must examine all "conditions of use" of a chemical. This includes so-called "legacy use" – ongoing and future uses of a chemical that is no longer manufactured, processed, or distributed for those specific uses, like asbestos used in old buildings.
Defending this position Thursday, Justice Department attorney Samara Spence said the act lets the EPA exclude legacy use from its assessments. She said the EPA excluded legacy use because, with 80,000 chemicals to review, the agency concluded it will get the most "bang for its buck" by focusing on substances on the market right now.
Friedland was skeptical. "If the chemical is used in a variety of ways, shouldn't you add them up?" she asked.
Spence said that the Ninth Circuit doesn't have jurisdiction over this part of the framework rules, which consist of a preamble discussion of what the EPA may do on a case-by-case basis in the future.
"Is it your position we can't ask that now? We have to ask it as to each chemical later?" Friedland asked through an incredulous sigh.
Spence said yes. "Congress gave EPA the choice; that's plain in the statute," she said.
"That's what makes these claims so hard to even really talk about, they're all what-ifs," Spence said. "That's why there's a standing problem; they're all what-ifs. What if maybe in the future EPA exercises that authority in an arbitrary and capricious way? If that ever happens, that is reviewable. At this point in time, nothing in the statute says EPA can't do that."
The question of whether the petitioners have standing could partly torpedo their appeal. Both Friedland and Senior U.S. Circuit Judge Diarmuid O'Scannlain, a Ronald Reagan appointee, indicated the petitioners may lack standing to challenge the EPA's preamble discussion because they hadn't identified a concrete injury from the chemicals under review.
O'Scannlain questioned whether there had been an injury conferring procedural standing, and Friedland noted procedural standing is designed to provide "immediate" protection.
"Here you have two steps," she told Sarah Tallman, an attorney with the Natural Resources Defense Council representing the petitioners.
On rebuttal, Tallman reminded the three-judge panel the ongoing use of restricted substances is hurting vulnerable populations. She offered asbestos as an example – haulers who take asbestos-laden building insulation to disposal sites and firefighters who enter burning buildings containing asbestos insulation.
"We have submitted expert evidence that these kinds of exposures are harmful," Tallman said, "so there is a reasonable probability that if EPA fails to consider those uses in its evaluations and the decisions it's making, it will be underprotective and underinclusive."
U.S. District Judge William Pauley III, sitting by designation from the Southern District of New York and a Bill Clinton appointee, joined Thursday's panel.
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