D.C. Circuit Upholds EPA’s CERCLA Designation of PFOA and PFOS

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The D.C. Circuit has upheld EPA’s designation of two PFAS, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  In Chamber of Commerce v. EPA, decided August 18, 2026, the court denied every petition challenging the designation, leaving the 2024 rule in place.

What the Court Decided

Industry petitioners, led by the U.S. Chamber of Commerce and joined by chemical, fuel, waste, recycling, construction, and paper trade associations, raised three lines of attack: (1) that EPA misread CERCLA’s “may present substantial danger” standard; (2) that its cost-benefit analysis violated the Administrative Procedure Act’s notice requirement and was arbitrary and capricious; and (3) that regulating amid scientific and economic uncertainty was itself unreasonable.  The panel rejected all three.

Starting with the standard for designation, 42 U.S.C. § 9602(a) directs EPA to designate as hazardous those substances that, when released into the environment, “may present substantial danger to the public health or welfare or the environment.”  Petitioners read that phrase to require a finding that harm will occur on release.  Interpreting the statute de novo and without deference to EPA under Loper Bright Enterprises v. Raimondo, the court disagreed.  “May” denotes possibility, not certainty, and the statute directs EPA to forecast the risk of harm at the time a substance is released, the court held.  The phrase “substantial danger” means that the risk of harm must be serious and real, not hypothesized, which the court said answers the worry that EPA’s reading would let the agency reach something as innocuous as table salt.  Requiring absolute certainty about every release, the court added, would paralyze a statute Congress designed to act on scientific probabilities.

The court rejected two related theories within the same challenge.  First, it declined to read an inflexible hierarchy into CERCLA under which “hazardous substances” must clear a higher bar than “pollutants or contaminants.”  The two are separate designation regimes, the court held, and a substance may begin as a pollutant or contaminant and later be designated a hazardous substance as the science develops.  Second, the court found no nondelegation or void-for-vagueness problem.  Tying EPA’s authority to scientific findings under a public-health standard supplies the “intelligible principle” the nondelegation doctrine requires, the decision states, and the prior regulation of PFOA and PFOS under CERCLA gave regulated parties fair notice that they could be listed.

On the notice challenge, the court held that EPA’s Regulatory Impact Analysis was a “logical outgrowth” of the earlier Economic Assessment, so the additional cost data introduced in the final rule required no fresh comment round.  Notably, the court did not decide whether CERCLA requires EPA to weigh costs in a designation at all.  EPA assumed it must, and the panel assumed the same without deciding, which leaves that question open for a future challenge.

As for regulating amid uncertainty, the court held that EPA acted reasonably in designating PFOA and PFOS despite acknowledged gaps in what it knows about where the chemicals are, what cleanup will cost, and the rule’s downstream effects.  The decisive point was that designation is only the first of many steps before liability attaches.  A long sequence of contingent regulatory actions, together with CERCLA’s statutory limits on liability, stands between listing a substance and any party actually bearing cleanup costs.  Accordingly, the court concluded that EPA’s choice to regulate now rather than wait for certainty was not arbitrary and capricious.

Why It Matters

The designation, effective July 8, 2024, was EPA’s first use of 42 U.S.C. § 9602(a) to list a substance directly, rather than by reference to another environmental statute.  Its practical consequences are now in force: releases of one pound or more of PFOA or PFOS in a 24-hour period trigger reporting obligations, federal property transfers carry notice duties, and most significantly, responsible parties face CERCLA’s strict, joint-and-several liability and cost-recovery regime.

The ruling reaches well beyond PFAS manufacturers.  Waste management, recycling, construction, and other “passive receivers” that handled PFOA- and PFOS-containing materials without making them may now sit within the liability chain.  As the court stressed in rejecting the uncertainty challenge, though, listing is not the same as liability: CERCLA’s defenses, including its act-of-God, third-party, de minimis, de micromis, and innocent-landowner provisions, continue to limit who ultimately pays.

What to Watch

The decision is recent, and the deadlines for a petition for rehearing en banc or a petition for certiorari have not yet run, so the litigation may not be over.

Several aspects of the ruling bear on future CERCLA designations.  Because the court reviewed EPA’s reading de novo and still upheld it, the agency’s designation authority now rests on the statute’s best reading rather than on judicial deference, a firmer footing in the wake of Loper Bright.  EPA committed to notice-and-comment rulemaking before updating this designation, and it has said it intends to develop a broader framework for § 9602(a) designations generally, though the scope and timing of any such rulemaking remain to be seen.  And because the court left open whether cost must be weighed in a designation at all, that question is likely to return as EPA considers additional substances.

For background on the agency’s decision to defend the rule, see our previous post on the litigation.

The case is Chamber of Commerce v. EPA, No. 24-1193 (D.C. Cir.), filed June 10, 2024.

Federal Court Blocks California’s “Truth in Recycling” Law on First Amendment Grounds

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A federal court has preliminarily blocked California’s “Truth in Recycling” law, ruling that its restrictions on recyclability claims are likely unconstitutional under the First Amendment and finding that several of its key provisions are impermissibly vague under the Fourteenth Amendment.

In a July 14, 2026, order, the Southern District of California concluded that although the provisions likely to be unconstitutionally vague could be severed from the statute, the plaintiffs were likely to succeed on their broader First Amendment challenge.  As a result, the court enjoined enforcement of the law in its entirety pending further litigation.

What California’s “Truth in Recycling” Law Requires

California enacted SB 343, often referred to as the “Truth in Recycling” or “Truth in Labeling” law, in October 2021.  The law declares recyclability claims—including the chasing arrows symbol—deceptive or misleading unless certain criteria are met.  Chief among them is the “60/60 requirement,” which mandates that the labeled product or packaging be:

  1. Collected for recycling by jurisdictions serving at least 60% of Californians; and
  2. Processed by facilities serving at least 60% of recycling programs statewide, with the collected material sent to and reclaimed at a facility consistent with the Basel Convention (a 1989 treaty governing the transnational movement of hazardous waste).

The law also requires that:

  • The labeled product or packaging “routinely” become feedstock used to produce new products or packaging;
  • Plastic packaging not include any components, inks, adhesives, or labels that prevent recyclability, according to guidance published by a plastics trade association; and
  • Plastic products and non-plastic products and packaging be “designed to ensure recyclability” and not include any components, inks, adhesives, or labels that prevent recyclability.

These restrictions were set to take effect on October 4, 2026.  The plaintiffs—a coalition of roughly twenty trade associations spanning food, packaging, grocery, and retail industries—sued Attorney General Rob Bonta in March 2026, arguing the law is unconstitutional on its face.

Key Provisions Likely Unconstitutionally Vague

The plaintiffs argue that four of the law’s requirements are unconstitutionally vague under the Fourteenth Amendment.  For the purposes of a preliminary injunction, the court found that they are likely to succeed on each challenge:

  1. The “routinely becomes feedstock” provision, because the meaning of “routinely” is unclear.
  2. The Basel Convention requirement, because manufacturers were given no guidance on how compliance with the provision will be determined, which elements of the convention will be considered in reaching a determination, and which facilities are currently in compliance.
  3. The reference to industry guidance, because it is ambiguous whether materials categorized as “Detrimental to Recycling” or “Tolerated But Needs Improvement” are permissible, and because SB 343 does not address what happens when the guidance changes.
  4. The ensures or prevents recyclability provision, because the law provides no guidance on what those terms mean.

The court found all four requirements severable from the remaining text of the law, including the 60/60 requirement—meaning that the rest of the law could still theoretically be allowed to take effect even if the four vague provisions were enjoined.

First Amendment Analysis

The remainder of the law could not withstand scrutiny under the First Amendment, however.

As a threshold matter, the court first determined that the speech at issue is only “potentially” misleading, and not “inherently” misleading, and therefore within the scope of the First Amendment.  The court then applied the remaining prongs of Central Hudson Gas & Electric Corp. v. Public Service Commission, the framework applicable to many regulations of commercial speech.

While finding that California has substantial interests in (1) improving recycling rates and (2) reducing consumer confusion, the court concluded that neither interest was directly advanced by the law.  Addressing recycling rates first, the court held that California failed to adequately support its assertion that businesses would redesign products and packaging to make them recyclable under the law instead of simply removing their recyclability claims.  Gains in efficiency at recycling facilities from removing contaminants “may be substantially outweighed by the decreased rate at which recyclable materials reach those facilities,” the order states.

As to consumer confusion, the court held that the reduced number of recyclability claims would leave customers “with less information than they would receive in the absence of SB 343’s regulatory scheme.”  For example, a product only recyclable in one part of California could not be labeled with that information because the 60/60 requirement would not be satisfied, the court observed.

Finally, the court also held that the law is more extensive than necessary to serve its interests, observing that less extensive regulations, such as required disclosure of materials that may limit recycling, would also advance the state’s goal.

The case is California League of Food Producers v. Bonta, No. 3:26-cv-1675 (S.D. Cal.), filed March 17, 2026.

New Mexico PFAS Labeling Mandate Faces First Amendment Challenge in Federal Court

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A collection of trade associations has sued in federal court to block New Mexico’s PFAS labeling requirement for consumer products, arguing that the regulation violates the First Amendment and the dormant Commerce Clause.

The plaintiffs—including the American Chemistry Council, Alliance for Automotive Innovation, American Coatings Association, National Association of Manufacturers, and several other industry groups—filed their complaint on July 1, 2026, along with a motion for a preliminary injunction based solely on their First Amendment claim.  As it stands, the labeling requirement applies to nearly all products manufactured for sale in New Mexico on or after January 1, 2027.  While several other states have adopted PFAS labeling rules, none apply so broadly.

The federal suit follows a state-court challenge to the labeling requirement, which also alleges First Amendment violations.  That case, filed by a paint manufacturer in May, separately argues that the regulation violates state law because it exceeds statutory authority and imposes an impracticable labeling deadline.

Regulatory Background

New Mexico’s PFAS Protection Act, enacted in 2025, phases in prohibitions on products containing intentionally added PFAS and requires manufacturers to report their use of PFAS to the state.  The law defines PFAS broadly but exempts certain products from its requirements, including fluoropolymers.

In April 2026, following a rulemaking hearing, the New Mexico Environmental Improvement Board (EIB) approved regulations proposed by the New Mexico Environmental Department (NMED) to implement the Act, including a labeling requirement.  The mandated label consists of the term “PFAS” inside an Erlenmeyer flask symbol.  Notably, the statutory exemptions to the prohibitions and reporting requirements do not extend to the labeling mandate.

The First Amendment Claims

The plaintiffs’ First Amendment arguments center on which level of scrutiny applies.  Compelled commercial speech is ordinarily subject to heightened scrutiny, which the plaintiffs argue the labeling requirement cannot survive.  A lesser standard applies only to disclosures that are purely factual and uncontroversial, relate to the terms under which a product or service is offered, and are not unduly burdensome—the test established in Zauderer v. Office of Disciplinary Counsel.  In the preliminary injunction motion, the plaintiffs contend the label fails on every count.

Not purely factual.  The plaintiffs argue the Erlenmeyer flask symbol doesn’t convey factual information so much as a warning.  Commercial manufacturing doesn’t actually use Erlenmeyer flasks, they note, and there is ongoing scientific debate over which substances even qualify as PFAS.  Like a skull-and-crossbones for poison or a flame symbol for flammability, the flask is designed to signal danger, the filing argues.  While NMED testified that the flask tells costumers that the product contains a chemical “they might want to know about,” that interpretation “does not pass the straight face test,” since the state “does not require the Erlenmeyer flask graphic for any other chemical on the neutral theory that consumers ‘might want to know about’ it.”

Not uncontroversial.  The filing next argues that this warning is controversial because the risks associated with PFAS as a class are “at best unsettled.”  For example, the plaintiffs point to fluoropolymers, which they say are understood to present little to no risk when used in products.  To the extent that uncertainty exists on this point, they argue it does not help New Mexico, because it only suggests that the question is controversial.  “If the government wants to present its position concerning an unsettled scientific topic to consumers, then it must do so itself,” the filing states.

Not related to the consumer transaction.  The plaintiffs argue that any upstream or downstream harms associated with PFAS—including releases from manufacturing or disposal—fall outside Zauderer‘s scope because they don’t relate to the terms of the transaction with the consumer.

Unduly burdensome.  Finally, the plaintiffs assert that compliance will be extraordinarily costly and disruptive, potentially running into the hundreds of millions of dollars, in part because manufacturers with global distribution chains may need to relabel their entire product lines.

The motion for a preliminary injunction ends by requesting that the court, at a minimum, enjoin enforcement of the labeling mandate as applied to products only containing fluoropolymers or PFAS to which consumers will not be exposed.

The Dormant Commerce Clause Claims

The complaint also raises two Commerce Clause claims not included in the preliminary injunction motion.

The first argues that the regulation improperly reaches conduct entirely outside New Mexico.  No products containing intentionally added PFAS are manufactured in the state, the complaint notes, yet the mandate applies even when a manufacturer never directly transacts in New Mexico—for instance, when it sells to a third-party wholesaler that independently distributes there.  The plaintiffs argue this amounts to direct regulation of interstate commerce.

The second claims that the regulation’s burdens on interstate commerce exceed its local benefits.  In part because no products are manufactured with intentionally added PFAS in New Mexico, the complaint argues, the costs of compliance will fall almost entirely on out-of-state commerce.  New Mexico had less burdensome alternatives—like carving out fluoropolymers or eliminating the flask symbol—that would have a lesser impact, evidencing that the requirement is excessive, the complaint concludes.

The case is American Chemistry Council v. Kenney, No. 1:26-cv-2130 (D.N.M.), filed July 1, 2026.  A hearing on the preliminary injunction motion has been set for August 27, 2026, at 8:30 AM MT.

California Barred from Enforcing Prop 65 DEA Warning After First Amendment Challenge

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On June 24, 2026, the U.S. District Court for the Eastern District of California entered a final judgment and permanent injunction barring the Attorney General from enforcing Proposition 65’s cancer-warning requirement for diethanolamine (DEA) in cosmetics.  The judgment adopts a stipulation that the Personal Care Products Council (PCPC) and Attorney General Rob Bonta filed the day before, resolving PCPC’s First Amendment challenge to the DEA warning.

First Amendment Arguments

As discussed in a previous post, DEA was automatically added to the Prop 65 list after the International Agency for Research on Cancer (IARC) concluded that the substance is “possibly carcinogenic to humans.”  However, in its complaint, PCPC argued that IARC did not identify any studies establishing a link between DEA and cancer in humans, relying instead on a study of “questionable relevance” in a highly susceptible strain of mice.  As a result, PCPC contended, applying the DEA Prop 65 cancer warning “in cosmetic and personal products is false, misleading, and factually controversial,” in violation of the First Amendment.

What the Parties Agreed

The Attorney General did not concede the constitutional question.  He continues to dispute that the DEA warning violates the First Amendment, but agreed to resolve the case in light of, as the stipulation puts it, “the current state of the relevant science” and three recent decisions rejecting compelled Prop 65 cancer warnings: a Ninth Circuit ruling on glyphosate, and two district court rulings on acrylamide and titanium dioxide. Under the stipulation, the Attorney General reserves the right to move to dissolve the injunction under Federal Rule of Civil Procedure 60(b) if the facts or law change.

What the Order Provides

The order declares that, based on the current state of the science, the DEA cancer warning cannot be constitutionally enforced.  It permanently enjoins the Attorney General, his officers, employees, and agents, and “all those acting in privity or concert with” them from filing or prosecuting new lawsuits to enforce the DEA warning requirement for cosmetic and personal care products.  For companies that make or sell DEA-containing cosmetics—shampoos, liquid soaps, and body washes—the order removes the Attorney General as a source of new DEA warning suits.

Because the judgment was entered on the parties’ stipulation rather than after a merits ruling, no court weighed the DEA science or held the warning unconstitutional in adversarial litigation.  Its declaratory language is tied to the current state of the science, and the Rule 60(b) reservation leaves room to revisit the injunction if that science or the law changes.

The case is The Personal Care Products Council v. Bonta, No. 2:26-cv-00682 (E.D. Cal.), complaint filed March 2, 2026.

FIFRA Preempts Label-Based Failure-to-Warn Claims, Supreme Court Rules

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On June 25, 2026, the Supreme Court held, 7-2, that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts a state-law failure-to-warn claim alleging that Monsanto failed to warn users that the weedkiller Roundup causes cancer.  The decision in Monsanto Co. v. Durnell concludes that EPA’s approval of a pesticide label without a cancer warning constitutes a federal labeling “requirement” that state tort law cannot override.

The ruling resolves a circuit split. The Third Circuit previously found preemption on these facts, while the Ninth and Eleventh Circuits and several state appellate courts had not.

What the Court Decided

Writing for the majority, Justice Kavanaugh identified two interlocking features of FIFRA’s registration regime that together produce the preemptive effect.  First, before registering any pesticide, EPA must determine that the proposed label contains all warnings “necessary and . . . adequate to protect health and the environment” and is not false or misleading.  That determination reflects the agency’s considered judgment about what a label must—and need not—say.  Second, EPA’s implementing regulations require manufacturers to use the EPA-approved label, subject to narrow exceptions not at issue in this case.  Changing the label without EPA approval, including by unilaterally adding a cancer warning, may expose the manufacturer to civil and criminal penalties under federal law.  Together, the majority reasoned, those features constitute a federal labeling “requirement” under FIFRA’s preemption clause that preempts state tort law claims imposing labeling requirements “in addition to or different from” those required under FIFRA.

The majority found support for that reasoning in Riegel v. Medtronic, Inc., which held that FDA premarket approval of medical devices preempts conflicting state-law device claims, emphasizing the similarities between that preemption clause and FIFRA’s.  It also distinguished Bates v. Dow Agrosciences LLC, which allowed state failure-to-warn claims equivalent to FIFRA’s misbranding standard, on the ground that Bates involved efficacy claims—statements EPA does not review at registration.  Safety determinations, which EPA does review, carry preemptive force that efficacy claims do not, the majority ruled.

Writing for the dissent, Justice Jackson argued FIFRA’s own misbranding prohibition is the relevant federal requirement, and a state claim that simply parallels that prohibition should not be preempted under Bates.  The majority and dissent also disagree over whether EPA’s precautionary-statement regulations reach chronic risks like cancer, as opposed to only acute hazards.  The majority concludes they do, while the dissent maintains the regulatory text addresses acute hazards only.  Because cancer is a chronic condition, the dissent argues pesticide manufacturers can add a cancer warning without EPA approval.

Justice Thomas joined the majority in full but wrote separately to question whether FIFRA’s registration scheme exceeds Congress’s Commerce Clause authority, whether FIFRA unlawfully delegates legislative power to EPA, and whether agency action can carry preemptive force under the Supremacy Clause at all.  No other Justice joined that view.

Who’s Affected

The decision most directly benefits pesticide and agrochemical manufacturers defending failure-to-warn claims premised on an EPA-approved label.  The Court’s reasoning, however, leans on a comparison to other federal statutes with similarly worded preemption clauses, which suggests the analysis may be cited in disputes involving other federally regulated, labeled products.  The opinion does not address other theories—such as design defect, manufacturing defect, or advertising-based claims—that were not before the Court in this case.

What to Watch

The Judicial Panel on Multidistrict Litigation’s pending-dockets report lists roughly 3,900 active cases in the Roundup MDL as of July 1, 2026, a population of claims against which Durnell‘s reasoning will likely be tested in dismissal motions.  EPA’s glyphosate registration posture also remains unsettled in part, since the Ninth Circuit vacated the agency’s most recent 2020 interim registration review decision in 2022.

In addition, federal lawmakers have introduced legislation to override the Court’s interpretation.  The People Over Poison Act, H.R.9528, would add language to FIFRA clarifying that the law’s preemption clause “shall not be construed to prohibit or otherwise limit a claim related to the labeling or packaging of pesticides or devices under the tort law of any State.”  The bill was introduced on June 29, 2026, by Reps. Chellie Pingree (D-ME) and Thomas Massie (R-KY) and has been referred to the House Committee on Agriculture.

The case is Monsanto Co. v. Durnell, No. 24-1068 (U.S.), petition for writ of certiorari granted January 16, 2026.  A previous post on the case, written after the Court granted certiorari, can be found here.

New Mexico PFAS Labeling Rule Faces Appeal Over Free Speech, Agency Authority

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A docketing statement has been filed in a state-court challenge to New Mexico’s near-universal PFAS labeling requirements, finalized by the New Mexico Environmental Improvement Board (EIB) in April as part of a broader rule implementing the state’s PFAS Protection Act (HB 212).

The docketing statement, filed June 22, 2026, identifies four issues on appeal:

  1. First Amendment. The rule requires manufacturers to affix a PFAS label—an Erlenmeyer flask bearing the term “PFAS”—to products containing any substance meeting HB 212’s definition of PFAS.  The appellant argues that the definition is among the broadest in use by any government or regulatory body, and “encompasses substances whose status as PFAS is subject to robust scientific debate, compelling businesses to make untrue and misleading claims on their products.”
  2. Exceedance of statutory authority—exemptions. HB 212 expressly exempts sixteen categories of products from its prohibitions and reporting requirements.  The appellant contends that the rule nevertheless requires labeling for most of those exempt products, extending the rule’s reach beyond the enabling statute.
  3. Arbitrary deadline. The rule requires labels on products manufactured on or after January 1, 2027, less than nine months after the rule’s adoption.  According to the appellant, relabeling requires packaging redesign, legal and regulatory review, coordination with printers and suppliers, and production schedule alignment.  The administrative record showed manufacturers need at least 18 months to comply, but the EIB arbitrarily rejected that evidence, the appellant argues.
  4. Exceedance of statutory authority—fees. The rule imposes fees for PFAS reporting submissions, currently unavoidable use applications, and label waivers.  The appellant contends that HB 212 does not grant the EIB authority to impose fees.

The case is Diamond Vogel, Inc. v. New Mexico Environmental Improvement Board, No. A-1-CA-43483 (N.M. Ct. App.), filed 05/22/2026.

Industry Groups Tell Third Circuit That EPA’s TCE Exemption Is Unworkable

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Companies granted an exemption from EPA’s ban on trichloroethylene (TCE) are asking the Third Circuit to vacate key conditions of that exemption, arguing that the requirements are so stringent they defeat the exemption’s purpose under the Toxic Substances Control Act (TSCA).

The brief, filed May 13, 2026, is one piece of consolidated litigation in which industry groups, environmental organizations, and labor unions are contesting EPA’s TCE prohibition.  EPA has placed the delayed prohibitions for critical uses on hold pending resolution of the case.

The petitioners include a trade association, a manufacturer of a lead-acid battery component, and a company that produces a specialty material used in passports.  EPA granted exemptions to the TCE ban for both uses under TSCA section 6(g), which permits exemptions when compliance “would significantly disrupt the national economy, national security, or critical infrastructure.”

However, the exemption came with a stringent 0.2 parts per million (ppm) worker exposure limit—a threshold the petitioners argue violates TSCA’s requirement that exemption conditions still “achiev[e] the purposes of the exemption.”

Even with state-of-the-art controls, the petitioners contend that the interim existing chemical exposure limit (ECEL) would require workers to wear bulky, full-facepiece respirators at all times.  That level of PPE use is infeasible, they argue: some workers cannot wear it for medical reasons, it impedes communication, hearing, and movement, and it is intolerable to wear for an entire shift.

“EPA admits that respiratory PPE creates health and safety hazards, and the record demonstrates that respiratory PPE cannot feasibly be worn all day, every day, by employees in Petitioners’ manufacturing facilities,” the brief states.

“Petitioners will thus be unable to invoke the section 6(g) exemption and will have to shut down their operations in the United States—the very outcome the exemption was intended to avoid,” the petitioners allege.

The petitioners suggested alternative interim ECELs, including a limit aligning with the European Union and United Kingdom’s 6 ppm restriction, but say EPA “merely nodded at this figure without providing any reasoned analysis for rejecting it.”

Best Available Science

The petitioners also challenge the scientific basis for the 0.2 ppm threshold.  Their brief focuses on a rodent oral-exposure study that allegedly underpinned the interim ECEL, arguing it was methodologically flawed in multiple respects, including that its experimental and control groups were not run concurrently.  Most importantly, they argue, its linkage between low TCE exposures and congenital heart defects has not been replicated in a dozen other experiments.

“TSCA’s best-available-science requirement is meant to prevent precisely this kind of selective reliance,” the brief contends.

The petitioners also challenge EPA’s decision to limit the TCE exemption for lead-acid battery separator manufacturing to 20 years rather than the 25 years requested, arguing that the shorter duration was arbitrary.

The brief asks the court to vacate both the interim ECEL requirement and the 20-year cap on the battery-separator exemption.  (The exemption for TCE used to manufacture specialty polymeric microporous sheet materials runs for 15 years and is not at issue on this point).

The consolidated proceedings were formerly captioned United Steelworkers v. EPA, No. 25-1055 (3d Cir.).  The brief can be found in the docket for Microporous LLC v. EPA, No. 25-1080 (3d Cir.).

New Mexico PFAS in Products Rule Appealed

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A legal challenge has been filed in state court against New Mexico’s PFAS in products rule, which was finalized last month.

As noted in a recent Chemical Watch article, concerns include product labeling issues and timelines that emerged during the rulemaking process.  The final rule’s labeling requirements apply to all products containing intentionally added PFAS manufactured on or after January 1, 2027, with narrow exceptions.

More details will become available after the appellant files a docketing statement, due within 30 days of the suit’s filing on May 22, 2026.  The notice of appeal can be found here.

For more on the rulemaking, view our New Mexico PFAS archive.

EPA Cannot Use Low Exposure to Justify DecaBDE Inaction, Ninth Circuit Rules

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The Ninth Circuit has ruled that EPA’s decisions not to regulate certain decabromodiphenyl ether (decaBDE) exposures under the Toxic Substances Control Act (TSCA) were not supported by substantial evidence, ordering the agency to regulate or better justify its inaction in four areas: recyclable articles, disposal, wastewater, and sewage sludge.

The May 13, 2026, ruling leaves EPA’s regulations for decaBDE intact but remands them back to agency to regulate—or better defend its decision not to regulate—those areas.  It is the first time a court has weighed in on TSCA section 6(h), which requires EPA to reduce exposures to certain persistent, bioaccumulative, and toxic chemicals (PBTs) “to the extent practicable.”

Congress added section 6(h) in 2016.  EPA issued a risk management rule for decaBDE in 2021 and amended it in 2024, targeting the flame retardant’s use in products.  But the agency declined to regulate various other exposures, citing low exposures and prohibitively high costs.

Siding with environmental groups, the Ninth Circuit rejected EPA’s low-exposure rationale outright.  Because TSCA does not require EPA to conduct a risk evaluation before regulating section 6(h) PBTs, Congress already determined that any exposure warrants a regulatory response, the court held.

“[I]t is beyond EPA’s authority to justify a decision not to regulate based on there being low levels of decaBDE,” the opinion states.  “TSCA § 6(h)(4) permits EPA to consider decaBDE levels for the purpose of deciding between regulatory tools, but not in deciding whether to use a regulatory tool at all.”

The court stopped short of holding that high costs can never justify a decision not to regulate under section 6(h), but it found EPA’s cost evidence consistently inadequate.  For recyclable articles, for example, EPA’s economic analysis relied on studies not specific to decaBDE and failed to consider regulatory options short of an outright ban.

Substantial Evidence

EPA’s other justifications fared no better under TSCA’s “substantial evidence” standard, which the court characterized as a “searching review.”

On disposal, EPA argued regulations were unnecessary because the Resource Conservation and Recovery Act (RCRA) already reduces exposures to the extent practicable.  But the court held that “EPA cannot evade its responsibilities under TSCA to regulate decaBDE disposal merely by invoking EPA’s compliance with another statute regulating solid waste disposal,” while also observing that RCRA does not cover all possible disposals.

For wastewater, the court found that EPA had ignored data contradicting its position that decaBDE is not released to water.  And, on recycling, it held that the agency gave “undue weight” to its position that regulation would undermine its general pro-recycling stance.

The court also rejected EPA’s fallback argument that staged regulation justifies its current inaction.  Section 6(h) “expressly places regulation of decaBDE on an expedited timeline,” the court held, and EPA has made no commitment to address these exposures in future rulemaking.

The case is Alaska Cmty. Action on Toxics v. United States EPA, No. 21-70168 (9th Cir.).

EPA Avoids Court Order on Organophosphates, but Timeline Concerns Remain

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The Ninth Circuit has declined to force EPA to act on a petition brought by nonprofits targeting organophosphate pesticides, calling the request “premature” despite noting concerns with the agency’s response timeline for certain pesticides.

The 2021 petition, brought by environmental and farmworker groups, asks EPA to revoke Federal Food, Drug, and Cosmetic Act (FFDCA) food tolerances and cancel Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) registrations for organophosphate pesticides due to health harms.

In a memo issued April 27, 2026, the court generally accepted EPA’s plan to address the disputed pesticides in three groups, finding the delay thus far “below the threshold of what we have generally found to be unreasonable.”

Under EPA’s proposed schedule, the agency plans to respond to the first group of pesticides in 2026.  For the second group, EPA plans to address the FFDCA issues in 2026 and the FIFRA issues during registration review.  EPA plans to address the third group entirely in conjunction with registration review.

Still, the court expressed concern about “the lack of a concrete timeline” for resolving some of the petitioners’ FIFRA claims, particularly those involving pesticides that may present higher risks.

“EPA admits that it will not complete its registration review for any of the thirteen pesticides by the October 2026 statutory deadline,” the memo states.  “If, by the expiration of that statutory deadline, EPA still ‘does not offer a timetable’ for resolving the FIFRA-related claims for those particular pesticides presenting higher levels of risk,” the outcome may be different, the court said.

“If EPA chooses not to address the chemicals posing the greatest risk by the 2026 deadline, Petitioners are free to file a second mandamus petition as to those chemicals,” the court added, using the legal term for a petition seeking to compel agency action.

Registration Review

The court was partly persuaded by the existence of the October 2026 registration review deadline itself, which Congress extended from October 2022 through the Pesticide Registration Improvement Act of 2022, commonly known as PRIA 5.

“Congress thus judged that EPA needs more time to complete the FIFRA registration review process for the types of pesticides at issue,” the memo states.  “This weighs heavily against granting relief with respect to Petitioners’ FIFRA-related claims until after the congressional deadline has passed.”

The October 2026 deadline for registration reviews applies to pesticides registered before October 1, 2007, when Congress formally required EPA to review each registered pesticide at least once every fifteen years to ensure that it can still be used without unreasonable adverse effect on human health or the environment.

Human Health Concerns    

The 2021 petition argues that organophosphate pesticides can cause a range of unreasonable adverse effects, including neurodevelopmental harm in children at exposures “far below” EPA’s current regulatory endpoint.  According to the petition, those harms include impaired motor and mental development, reduced IQ, attention disorders, and autism associated with low-level exposure.

These alleged harms were not sufficient for the court to force EPA’s hand, however.

“The breadth of [Petitioners’] request was perhaps reasonable in 2021 in light of what the EPA characterizes as its earlier conservative assumption ‘that all the [organophosphates] cause similar neurodevelopmental effects.’”  But “all parties now seem to agree that the degree of risk does not appear to be consistent for all thirteen pesticides still at issue.”

For example, the petitioners conceded that the pesticides chlorethoxyfos, tribufos, and terbufos are lower priority at oral argument, while emphasizing greater risk associated with bensulide, the court said.  “On this record, we cannot hold that human risks justify granting the petition as to all thirteen pesticides.”

The case is In re Pesticide Action Network North America, No. 25-3955 (9th Cir.), petition for a writ of mandamus filed 6/25/2025.  The memorandum disposition is unpublished.