Lynn L. Bergeson Quoted in Chemical Processing Article “What Ditching The Chevron Deference Means for the Chemical Industry”
On July 19, 2024, comments by Lynn L. Bergeson were featured in Chemical Processing’s article on what the Supreme Court ruling that overturned the landmark 1984 decision in Chevron v. Natural Resources Defense Council (NRDC) means for the chemical industry.
But not all influence is lost, according to Lynn Bergeson, Chemical Processing’s compliance columnist and managing director at Bergeson & Campbell. She and co-author Kelly N. Garson address several questions in a soon-to-be published paper, “Loper Bright and TSCA: Will the demise of Chevron matter?”
“The EPA’s well-supported views will continue to command respect under any standard. The court in Loper Bright made it abundantly clear that although an agency’s view is not binding on the court, an agency’s view “may be especially informative ‘to the extent it rests on factual premises within [the agency’s] expertise.’”
Still, Bergeson and Garson note that the recent Loper Bright decision has invited much discussion on whether decisions made by the EPA under TSCA, especially under sections 4 (testing), 5 (new chemicals), and 6 (existing chemicals), can be expected to be challenged more routinely and with a greater probability of success.
“The answer is probably so, but time will tell. The better question, however, is what stakeholders should do differently in advocating on TSCA issues in light of Loper Bright.”
The duo note, “TSCA advocates must be relentlessly compelling, fact-based and thorough in advocating for their positions in a Chevron-free world. Industry advocates will have a better shot at prevailing based on a careful review of the record taken as a whole, free of the Chevron mandate some courts have been compelled to apply.”
The Bergeson and Garson paper explains that TSCA mandates that manufacturers and processors are responsible for developing adequate information on the environmental and health effects of chemical substances and mixtures.
“A case of first impression, Vinyl Institute v EPA challenged the EPA’s implementation of its new TSCA section 4 test order authority under Lautenberg in the US Court of Appeals for the DC Circuit [No 22-1018, slip op. at 8 (DC Cir. 5 July 2024)]. Though the DC Circuit has not yet issued its mandate in the case, the petition for review concerned the EPA’s 2022 test order requiring avian chronic toxicity testing for 1,1,2-trichloroethane. In reviewing whether the EPA met the rigorous burden of demonstrating substantial evidence under TSCA section 4(a)(2), which authorizes the EPA to require the development of new information necessary for it to conduct a TSCA section 6 risk evaluation, the court found that the EPA did not provide substantial evidence in the public record for the court to review, leading to the court’s vacatur and remand of the order.”
“The DC Circuit did not find, however, that all of the EPA’s determinations lacked substantial evidence. In those cases where the court upheld an EPA decision, the court considered whether the EPA’s explanation “makes sense” or was a reasonable determination. Most significantly, the DC Circuit held that the EPA provided substantial evidence demonstrating that avian chronic toxicity testing is, in fact, necessary for the EPA to complete its 1,1,2-trichloroethane risk evaluation.”