John Gardella was recently interviewed for an article written by Inside PFAS entitled “Attorney Sees Chemours’ GenX Suit As Signal of New TSCA ‘Pushback.'” The author, Diana DiGangi, examined how a recent lawsuit by Chemours in opposition to the EPA’s PFAS Health Advisories may foretell similar pushback by industry for EPA action related to PFAS. John provides his insights on the nuances of the lawsuit, how the EPA may continue to come under fire for TRI reporting expansion, and how recent U.S. Supreme Court rulings may impact the successfulness of such lawsuits.

Some excerpts from the article are below:

“John Gardella, a lawyer and shareholder with the Boston-based law firm CMBG3, tells Inside TSCA that EPA’s ramped-up efforts to study and address PFAS, including through Toxics Release Inventory (TRI) listings, are likely to draw escalating legal attacks from industry in the vein of Chemours’ suit over the recent health advisory level (HAL) for its chemical cluster known as GenX.

“‘I think the quickness with which the EPA wants to act may result in more lawsuits like the Chemours one,” Gardella says. “Because Chemours was arguing that they circumvented the public comment period, they acted arbitrarily, they didn’t consider the full science — essentially, they acted too quickly. I think that type of thing is going to increase as the EPA puts more and more chemicals on the TRI reporting list.'”

As EPA accelerates efforts to regulate PFAS and other chemicals under the Toxic Substances Control Act (TSCA) and a range of other statutes, he said, suits targeting its scientific assessments are likely to become more common — and could also draw on the landmark June 30 Supreme Court ruling in West Virginia v. EPA, which narrowed EPA’s authority to act on climate under the “major questions” doctrine.

Gardella says that though he doesn’t know how successful this tactic will be, he could “see an uptick in litigation on the horizon just because of that ruling alone.”

The West Virginia precedent has already been cited as a TSCA concern by a coalition of 12 Republican attorneys general (AGs) who say it undercuts the agency’s pending rule to ban chrysotile asbestos, writing in joint comments on July 13 that the proposal “fails to account for whether EPA has statutory authority to impose a flat ban.”

However, several attorneys — including Gardella — have doubts about whether courts will agree that the doctrine should extend to lawsuits under TSCA, which Congress amended in 2016 to give EPA broad authority to regulate chemicals.

“It will be interesting to see how that language and the Supreme Court ruling will be used to try and push back in lawsuits for TSCA issues, specifically trying to argue that under TSCA, the agency doesn’t have the authority to act as it’s trying to do,” he said.

Gardella also anticipates that EPA would face lawsuits alleging “overreach” should it decide to regulate a group of chemicals as a class, as environmentalists have urged for PFAS.

“There are going to be a lot of arguments that that type of approach is not scientifically valid and sound — and essentially that the EPA is overreaching in trying to circumvent a procedure, which is set up currently where they should research and analyze chemical by chemical,” he said. “When that happens, that’s going to be a big source of litigation. Absolutely.”

CMBG3 Law is following judicial, legislative, administrative, and scientific developments relating to PFAS. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.

Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact the Chair of our PFAS – Toxic Torts Team: John Gardella.