In the 1940s, industry started using a new technology that had seemingly endless properties. Per- and polyfluoroalkyl substances (PFAS), a class of over a thousand chemicals, could make products nonstick, anticorrosive, water repellent, and stain resistant. Companies applied the chemicals to a range of everyday items for hundreds of uses, launching popular product lines of stain resistant carpets, waterproof clothes, and nonstick pans. In the 1960s, the United States Navy found that types of PFAS could also suppress fires, and the department patented the fire-fighting foam that all military sites, as well as many fire departments and airports, adopted about a decade later in the 1970s.
While PFAS has undeniable practical applications, studies after 1980 began to link even small amounts of the chemicals with negative health impacts. Researchers found statistically significant correlations between PFAS and cancers, liver and kidney issues, metabolic diseases, weight gain, and reduced breast milk production. PFAS exposure has also been linked with increased cholesterol levels, decreased antibody response to certain vaccines, and pregnancy complications. The chemicals can leak into air, water, and soil, and can accumulate in tissue. By the twenty-first century, PFAS appeared in blood samples for about 97 percent of people tested. PFAS has also been detected in all parts of the environment, ranging from locations directly neighboring military sites to highly remote areas. Notably, the individuals most affected by PFAS are people of color and people living under the poverty line.
The defining characteristic of PFAS chemicals is a chain of carbon-fluorine bonds. These strong bonds not only give PFAS their versatile applications but also make the chemicals highly persistent, meaning they do not break down readily. Accordingly, PFAS also go by the colloquial name “forever chemicals.” Given their persistence, prevalence, and health risks, PFAS have become the subject of public health advisories, proposed regulations, and large settlements and lawsuits, including the case discussed in this In Brief.
Chemours v. EPA did not challenge a traditional final action of the Environmental Protection Agency (EPA). Rather, Chemours challenged a public health advisory, a non-legally binding notice that informs the public about potential health risks associated with a water contaminant. The Third Circuit ultimately dismissed Chemours’ petition for lack of subject matter jurisdiction, but in light of the increasing scrutiny of the U.S. Supreme Court on federal agency actions, this In Brief reexamines the arguments in Chemours.
Part I gives an overview of the relevant statutes and case law. Part II provides background on the parties and procedural history in Chemours. Part III analyzes how a court could have found jurisdiction to review the health advisory and hypothesizes the case’s substantive outcome in a world where Chemours had subject matter jurisdiction. This In Brief concludes with a contention that there is a low risk, and perhaps even a moderate reward, to allowing circuit courts to review health advisories.
