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May 29, 2024

Lynn L. Bergeson Quoted in Bloomberg Law Article “EPA Chemical Rulemaking Complicated by Challenge to Agency Power”

Bergeson & Campbell, P.C.

On May 28, 2024, comments by Lynn L. Bergeson were featured in Bloomberg Law’s article on legal challenges to the U.S. Environmental Protection Agency’s (EPA) interpretation of the Toxic Substances Control Act (TSCA).

Parties also may challenge the EPA’s decisions about “reasonably foreseen” uses of chemicals, said Fischer and Lynn Bergeson, managing partner of Bergeson & Campbell PC, which specializes in domestic and international chemical laws.

Amended TSCA requires the EPA to oversee and, when needed, regulate chemicals based on their “conditions of use.” The law defines those conditions as the circumstances by which a chemical “is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.”

But, reasonably foreseen isn’t defined in the law.

If the agency tends to be precautionary, “the sky’s limit on what’s reasonably foreseen,” Bergeson said.

When it comes to the EPA’s decision of what could be a reasonably foreseen use of a new chemical—one that’s never been made in or imported into the US—a law firm challenging the action could give “countless examples of agency decisions where it is not reasonable to foresee a particular use. It is just not reasonable by any independent standard,” she said.

“Yet somebody at EPA cooks it up. Therefore, it is a condition of use that is reasonably foreseen, and it invites a restriction that could be the death knell of a particularly promising technology,” Bergeson said.


Chevron is likely to be extinguished as we know it,” said Bergeson. Federal agencies’ rules could take a significant hit if the metric used in a 2017 study published in the Michigan Law Review holds true, she said.

The law professors and study authors examined 1,558 agency circuit court decisions citing Chevron from 2003 through 2013. Courts applied Chevron 77% of the time, and when they did, it boosted agency-win rates nearly 25%.

If the EPA or another agency has made an irrational decision, losing may be appropriate, Bergeson said. Yet the EPA’s judgment can be meritorious and deserving of the deference that reflects its years of experience applying technical standards and using of huge amounts of data, she said.

[…] Bergeson isn’t too worried about the Supreme Court’s coming opinion. “A lot of state courts have already eliminated it in any event, and the world as we know it hasn’t ended,” she said.

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