Lynn L. Bergeson Quoted in Chemical Watch Article “US Supreme Court curtails regulatory powers of agencies like the EPA”

On July 3, 2024, comments by Lynn L. Bergeson were featured in Chemical Watch’s article on the US Supreme Court’s decision to overturn a 40-year-old legal precedent that directed courts to defer to reasonable agency interpretations of the law, throwing into question the authority of agencies like the EPA to craft and defend certain regulations.

“This may be a case of be careful what you wish for,” said Lynn Bergeson, managing partner at Bergeson & Campbell.

“Chemical laws like TSCA are uniquely amenable to Loper Bright’s almost certain mischief,” Bergeson told Chemical Watch News & Insight. “Agency detractors may disagree with agency decisions, but replacing EPA’s expertise with that of an inexperienced or ill-equipped court’s independent judgment is deeply disturbing and could well invite significant commercial and legal disarray.”

Take for example the concept of unreasonable risk, which is not defined under TSCA section 6, Bergeson said. If courts can now apply their own independent interpretation of what conditions of use (COUs) and data inform an unreasonable risk determination, then final risk management rules are certain to be challenged, and we could see multiple standards emerge from different courts, she said.

TSCA section 5 new chemical reviews may also see more legal challenges in the future, Bergeson said. Companies have traditionally avoided litigation here, “settling for sometimes overly restrictive consent orders and resulting SNURs [significant new use rules] as a means to market access”.

While litigation is still expensive with uncertain outcomes, “Loper just adds a layer of comfort and a presumptive evening of the odds that Chevron disallowed”, she said.  

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