Judge Loren AliKhan, nominated by President Bident to the US District Court for DC, authorized several environmental groups to proceed with a lawsuit against the EPA for allegedly violating transparency and disclosure requirements of the Toxic Substances Control Act (TSCA). The August 2024 decision was in Environmental Defense Fund v Regan.
What is the background of this case?
In order to limit risks posed by toxic chemical substances, the TSCA requires the EPA to review and approve new chemicals before they can be manufactured. The law calls for public notice by the EPA within five business days of receiving an application, including the “nature and results” of specified tests. The law also mandates that the EPA make publicly available “all nonconfidential information” in such applications, including any health or safety studies.
In 2020, several environmental groups sued the EPA, contending that it has “repeatedly failed” to comply with the law’s disclosure requirements. The groups maintained that the EPA has a “pattern or practice” of violating TSCA requirements. The groups’ claims concern more than 250 chemical manufacture applications.
Over the next several years, negotiations took place and EPA produced some of the withheld documents. The groups maintained, however, that EPA’s actions were insufficient and filed a motion to compel production of the full administrative record, including withheld documents. The EPA claimed that it had taken sufficient action and moved to dismiss the case based on standing and other grounds. Judge AliKhan reviewed extensive briefs and held a hearing on both motions.
How did Judge AliKhan rule and why is it Important?
In a thorough opinion, Judge AliKhan denied the EPA’s motion and granted the motion filed by the environmental groups, so that the lawsuit can proceed. She explained that the TSCA creates a “freestanding right to information” about chemical manufacture applications that lasts “before, during and after any risk determination,” similar to the Freedom of Information Act. She also rejected the EPA’s argument that the case is now moot because of improvements they had made concerning disclosure, noting that “there is nothing to prevent the EPA from reverting to the old ways.” She also turned aside standing and other procedural arguments raised by the agency.
Judge AliKhan’s opinion is obviously important to the environmental groups who brought this case to vindicate the rights to disclosure under TSCA and improve public health and safety. A spokesperson for EDF praised the judge’s ruling, stating that it will “strengthen” the public’s ability to exercise their rights under the TSCA. The decision also serves as a reminder about the importance of promptly confirming fair-minded nominees to our federal courts.