The Third Circuit Court of Appeals rejected arguments by Chemours Company that the U.S. Environmental Protection Agency (EPA) acted unlawfully when it issued a health advisory about the risks of exposure to the PFAS forever chemical GenX in drinking water.
Health groups intervened in the case to support EPA’s advisory determination. And EPA followed up that advisory earlier this year with standards to limit GenX in drinking water.
"Through the years, our community has learned that when companies like Chemours are not actively hiding the science, they are usually attacking it. This is a win for public health and every resident harmed by GenX exposures. The courts got it right this time,” said Emily Donovan, co-founder of Clean Cape Fear.
"Chemours fought this health advisory level for the same motivation behind all their actions: money. While the court did not acknowledge their smokescreen, we are grateful they rejected Chemours' nefarious claim," said Dana Sargent, Executive Director, Cape Fear River Watch.
"The Court strongly and unanimously rejected Chemours's attempt to kill EPA's scientific guidance on how communities can protect themselves from toxic GenX contamination in tap water,” said Sarah Tallman, senior attorney with NRDC (Natural Resources Defense Council). “Everyone has a right to turn on their kitchen tap and have safe water, so we will continue to fight the chemical industry and others who try to block efforts to protect our health from toxic hazards."
“The Third Circuit correctly found that it lacked subject matter jurisdiction because the GenX health advisory is not a final agency action. The court rejected Chemours’ attempts to convert the advisory into a reviewable action with examples of indirect consequences of the health advisory. Because the court decided the case on jurisdictional grounds, the court noted that the recent Supreme Court decision in Loper Bright overturning Chevron deference did not affect their analysis. CEH represented NC Cape Fear River Basin community groups and individuals who have relied on the advisory to fight for health protective drinking water.” – Tom Fox, Senior Legislative Counsel, CEH (Center for Environmental Health).
Background
In August 2022, a coalition of community, public health, and environmental justice groups and Southeastern North Carolina residents moved to intervene in a legal challenge by chemical manufacturer Chemours to the drinking water health advisory issued in June 2022 by the EPA for GenX chemicals. Produced at the Chemours plant in Fayetteville, North Carolina, GenX chemicals are harmful members of the PFAS class of toxic “forever chemicals” that have for four decades been polluting the Cape Fear River, a source of drinking water for nearly 500,000 residents. Backed by extensive peer-reviewed science, the advisory identifies a GenX level of 10 parts per trillion (ppt) in drinking water to protect communities from the serious health effects of GenX exposure.
EPA in April 2024 issued regulations to curb contamination from GenX and several other “forever chemicals” in tap water. Chemours has sued challenging those regulations, and its challenge is pending in the Court of Appeals for the D.C. Circuit. Today the D.C. Circuit approved the intervention in that case by the Newburgh Clean Water Project, Merrimack Citizens for Clean Water, Environmental Justice Task Force, Fight for Zero, Concerned Citizens of WMEL Water Authority Grassroots, Clean Cape Fear, Buxmont Coalition for Safe Water, Clean Haw River and the NRDC. The groups are supporting EPA’s PFAS standards.
The coalition members that intervened in the case are Center for Environmental Health, Cape Fear River Watch, Clean Cape Fear, Democracy Green, North Carolina Black Alliance, Toxic Free North Carolina, NRDC (Natural Resources Defense Council) and five residents, Lacey Brown, Kyle Horton, Harper Peterson, Debra Stewart and Mike Watters.
