Environmental -- 2018

Natural Resources Defense Council v. EPA   (2nd Circuit)

Supporting EPA in NRDC challenge to TSCA Section 5

The NAM, along with the American Chemistry Council, intervened in Natural Resources Defense Council v. EPA in the Second Circuit Court of Appeals, supporting the EPA’s new regulations on chemicals under the updated Toxic Substances Control Act (TSCA). NRDC claims that the new standards put consumers at risk of harmful exposure. NRDC is challenging Section 5 of TSCA, which deals with the risk assessment standard for significant new use rules (SNURs) for chemicals and could potentially hinder approvals of new uses of chemicals. The NAM intervened on behalf of the EPA to make sure it retains proper standards that protect the interests of chemical manufacturers and users. This is the fifth TSCA lawsuit, and the NAM is also involved in the TSCA inventory reset litigation.

More specifically, NRDC’s lawsuit challenges EPA’s New Chemicals Decision Framework and takes the position that TSCA mandates the use of enforceable orders whenever EPA finds it needs to regulate a new chemical as an interim step to avoid any potential regulatory gap. EPA, on the other hand, plans to limit the use of Section 5(e) enforcement orders in some cases and issue SNURs instead. NRDC’s preferred approach could create even more significant delays in commercializing new chemistries and could lead to more companies having to privately negotiate conditions with EPA that are detrimental to downstream users. One legal issue is whether EPA has discretion to issue rules instead of orders to regulate new chemicals so that intended, known or reasonably foreseen uses of new chemicals do not pose unreasonable risks.

Shortly after the NAM filed its opening brief, NRDC decided to drop its lawsuit. On August 29, 2018, the court granted NRDC's motion to dismiss, resulting in a win for industry in this case.

Related Documents:
NAM response  (August 28, 2018)
NAM intervenor brief  (August 14, 2018)
NAM Motion  (February 5, 2018)


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