In a dramatic turn of events, a federal appeals court has quashed the U.S. Environmental Protection Agency’s directive for seven chemical manufacturers to conduct avian toxicity tests on a petrochemical solvent.
A panel of three judges from the U.S. Court of Appeals for the District of Columbia Circuit sided with the Vinyl Institute, asserting that the EPA had not provided sufficient evidence to justify the need for these new tests. This ruling marks the first instance where the D.C. Circuit has addressed the criteria for annulling a test order under the 2016 amendments to the Toxic Substances Control Act.
These amendments empower the EPA to mandate new testing to determine chemical toxicity, moving beyond reliance on existing data. However, the law stipulates that such orders must be backed by “substantial evidence in the record taken as a whole.”
Judge Karen LeCraft Henderson, writing for the panel, criticized the EPA for basing its court arguments on non-public information and studies that were only disclosed to the Vinyl Institute after the lawsuit was filed. This information, not being part of the public record, led to the court’s decision to invalidate the testing requirement.
The court has remanded the issue back to the EPA, urging the agency to substantiate its testing mandate with appropriate evidence. In response, the EPA stated that it is currently reviewing the court’s decision.
Ned Monroe, President and CEO of the Vinyl Institute, lauded the ruling, expressing relief over the cessation of “unnecessary tests on Bobwhite quail birds.” He emphasized the importance of early engagement between the EPA and manufacturers to ensure the collection of accurate data.
The disputed tests pertained to the chronic toxicity of 1,1,2-trichloroethane, a chemical widely used in plastics and petrochemical manufacturing. Despite the EPA’s 2022 directive, which highlighted gaps in toxicity data for earthworms and birds, the Vinyl Institute argued that existing data was adequate, thus negating the need for the new tests.
Environmental Defense Fund lawyer Samantha Liskow, who supported the EPA’s order, noted that the ruling did not undermine the EPA’s analysis or the necessity for testing. She anticipated that once the EPA supplements the public record with existing information, future industry challenges to the test order would be unsuccessful.
The case, Vinyl Institute Inc. v. EPA, represents a significant juncture in the ongoing debate over the scope of the EPA’s testing authority under amended legislation.
