Trump’s EPA Hints at Chemical Plans in Litigation of Biden Rules

The EPA’s new leadership is signaling its future chemical policies while the agency litigates Biden-era regulations and awaits rulings that will shape what it can do.

The Environmental Protection Agency has issued clear policies on climate change, environmental justice, and other topics since President Donald Trump’s second administration began. But its chemical policies are emerging more gradually—often in documents the agency submits to federal appellate courts.

“One of the challenges EPA faces is the litigation, which can constrain what the agency is allowed to say in terms of what it wants to do,” said David Fischer, an attorney who served as deputy assistant administrator for chemical safety and pollution prevention during the first Trump administration.

The agency’s attorneys are working through a tangle of interrelated lawsuits over chemical regulations in multiple circuits. That litigation is complicated by cases challenging rules reducing the risks of chemicals that the prior Trump administration said had to be restricted due to their unreasonable health or environmental risks.

As court rulings emerge, they will shape agency policies, said Fischer, now counsel at Keller & Heckman LLP where he advises clients about Toxic Substances Control Act (TSCA).

Meanwhile, tracking positions the agency takes and requests it makes in ongoing litigation is key to identifying the policies this administration is working toward, said Judah Prero, an Arnold & Porter Kaye Scholer LLP attorney focused on chemical regulations and policies.

Risk, Regulatory Policies

The EPA told the US Court of Appeals for the District of Columbia Circuit in March that the agency is rethinking four policies codified in a Biden-era rule describing strategies the agency uses to decide if chemicals must be restricted.

The four TSCA policies the EPA is rethinking under Trump are: the extent of chemical uses the EPA could exclude in risk evaluations; making a “single determination” of unreasonable risk for a chemical instead of use-by-use risk conclusions; the assumption that workers may not have appropriate, working personal protective equipment (PPE); and the presumption that people living near facilities that release chemicals could be “potentially exposed or susceptible subpopulations” the amended law requires the agency to consider.

The D.C. Circuit handed the EPA a win last month when it paused USW v. EPA, a lawsuit over the rule, giving the agency time to propose revisions to the regulation.

The EPA chose not to defend the Biden-era single determination and PPE policies in its June 3 oral argument before the US Court of Appeals for the Fifth Circuit in a separate challenge to a methylene chloride rule. But judges asked questions about those policies.

Another policy signal playing out in courts involves workplace air concentration limits, or existing chemical exposure limits (ECELs), the EPA can set.

In a motion submitted to the Fifth Circuit panel, the EPA asked to pause yet another lawsuit over a perchloroethylene rule so the agency can reconsider that rule’s workplace limit.

The EPA also asked the US Court of Appeals for the Third Circuit on May 27 to pause litigation over the agency’s trichloroethylene rule—also called USW v. EPA—to reconsider that worker exposure limit.

On the health front, the EPA asked the Fifth Circuit to allow it to reconsider whether the Biden administration used the best available science as it examined the risks of another solvent, 1,4-dioxane. The court gave the EPA until June 30 to do that.

On June 6, the EPA asked the US Court of Appeals for the Eighth Circuit to pause litigation over a 2024 carbon tetrachloride rule because the concurrent lawsuits are delaying review of the regulation.

Issues the EPA has not addressed in any court motion include whether it would let industries use chemicals in ways it banned last year or its deference to the Occupational Safety and Health Administration regarding chemicals that agency says are too risky for workers.

The EPA is clear that it will presume certain industries use PPE, Prero said. The extent to which it will regulate the workplace is unknown, but important, he said. Occupational health concerns dominated the problems EPA’s chemical risk management have sought to address.

Unreasonable Risk

The methylene chloride oral arguments and a recent TSCA petition submitted to the agency reveal another fundamental TSCA policy debate.

“Why shouldn’t EPA be required to determine unreasonable risk in light at least of reality,” a Fifth Circuit judge asked during the methylene chloride arguments in one of several exchanges with attorneys questioning how the agency estimates health risks.

The EPA’s use of a “non-zero” risk standard resulted in banning many uses of an extremely useful solvent, Keith Bradley, a Squire Patton Boggs’ attorney representing companies opposing the methylene chloride rule, told the court.

Those exchanges touched on the amount of risk the EPA concludes is reasonable and the amount that’s unreasonable, Fischer said after the arguments. An “unreasonable risk” conclusion triggers TSCA regulations.

“EPA equates unreasonable risk with any risk,” he said.

Based on the panel’s questioning, the Fifth Circuit seems willing to address this issue in its decision, Fischer said. If the EPA revises its risk evaluation rule, it must provide more boundaries around what is and isn’t unreasonable risk, he said.

“The most important term in all of TSCA, arguably, is the term ‘unreasonable risk of injury to health or the environment,’ wrote the Center for Environmental Accountability in a May petition specifying changes it seeks in a revised risk evaluation rule.

“Knowing what is and isn’t unreasonable risk is critical to effectively eliminating that risk,” said the petition from the center’s president, Marc Marie, who served as counsel at the Departments of Justice and Interior during the first Trump administration.

Fischer anticipates more parties will file TSCA rulemaking petitions, as they allow the submitter to make policy suggestions before the agency proposes regulations.

“That’s really, really helpful,” he said, because persuading the agency to alter a proposed rule is challenging due to the time needed to draft a regulation and the internal buy-in required.