> The judges did not deny the containers’ health risks, but said the EPA could not regulate the buckets under the statute it used.
I’m curious your thought process on how you made that conclusion.
I’m starting to feel like I should just accept that the legal community matches how I view the world, and it’s a more relevant and powerful way to view the world.
It's sophmoric to go "well, akshually, the law says..." when we're talking about corrupt bureaucrats with a history of enabling, covering up, and abetting in rampant environmental disasters (eg: https://en.wikipedia.org/wiki/Santa_Susana_Field_Laboratory). Cool, you're at stage 2 of viewing the world, which is really just trying to use faux rationality to cognitively disassociate from the nonsense evil going on in the world.
Stage 3 is letting decades of this nonsense erode this "academic" view and saying enough is enough.
I don't care what bureaucratic legalese these assholes are guarding their motives with, it's all 100% down to money. Money is flowing here between corporations and government, and that's the ultimate incentive behind these decisions.
the EPA bringing reaching the same conclusion the way the court pointed out is completely fine by me
what I can't get behind is your version where the authority you like can do anything you like in any way. you're assuming this is an example of "corrupt bureaucrats with a history of enabling, covering up, and abetting in rampant environmental disasters" and this is copypasta for any topic where something was curbed.
"The fifth circuit judges wrote that the EPA would have to regulate the containers under Section 6 of the Toxic Substances Control Act (TSCA), which the judges and Inhance claim would require the EPA to take into account the economic impact on Inhance. The company has said a ban on its fluorination process would put it out of business."
With that mindset we would still have Asbestos factories around. The economic situation of polluters should be completely outweighed by the health and environmental concerns of the population.
That actually is exactly what the court told the EPA to do.
>TSCA section 6(b)(4) requires EPA to establish, by rule, a process to conduct risk evaluations. Specifically, EPA is directed to use this process to “determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant to the risk evaluation by the Administrator, under the conditions of use.”
>Second, the EPA may regulate chemical substances under Section 6.
See 15 U.S.C. § 2605. The mandate of Section 6 is broader than Section 5, in
that Section 6 applies to all chemical substances, not just new chemical
substances or significant new uses of a chemical substance. See id. § 2605(a).
However, the rulemaking process under Section 6 is also more rigorous than
Section 5: It requires the EPA to conduct a cost-benefit analysis, weighing
the negative effects of the chemical substance against the benefits of the
substance and the economic consequences of prohibiting or limiting the
substance. See id. § 2605(c)(2)(A)–(C). No such analysis is required under
Section 5.
>We hasten to add that our ruling to this effect does not render the EPA
powerless to regulate Inhance’s fluorination process. The agency can
properly proceed, abiding the APA’s procedural guardrails, under TSCA’s
Section 6 by conducting inter alia the appropriate cost-benefit analysis
required for ongoing uses—a proposition even Inhance concedes. The EPA
is just not allowed to skirt the framework set by Congress by arbitrarily
deeming Inhance’s decades-old fluorination process a “significant new use.”
See Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 105–06 (2015).
It's not a question of protecting the producer, it's the fact that the producer is making something that has at least some benefit to society - the containers. If we stop them from producing the containers, then society loses out on that benefit. It may still be worthwhile to stop them, but businesses exist to the benefit of their customers and stopping them is not without it's own costs.
We banned the use of asbestos in most situations, and therefore lost the benefit of an excellent building and insulation material. But we decided that was a worthwhile tradeoff considering the well-established health impacts.
There are plenty of alternative packaging materials without the health effects of PFAS, just like we learned to build properly and safely without asbestos.
Same holds for all extinct products, like leaded paints and leaded gasoline.
We can't really expect customers to make informed decisions about the large scale environmnetal and health impact of products, regulating them is exactly the job of the governing body.
> There are plenty of alternative packaging materials without the health effects of PFAS, just like we learned to build properly and safely without asbestos.
That’s exactly the sort of thing that would be addressed in a cost-benefit analysis. If there’s good alternatives, the cost of the ban is lower. The issue isn’t whether expert agencies should be making these decisions, it’s that the expert agency here didn’t actually do the expert analysis the law requires.
Except we did still have asbestos factories around until recently. This ruling is in line with the previous asbestos one, so just 30 more years until PFOA, etc. will be properly banned.
The article mischaracterizes the decision and the law. The economic analysis under Section 6 requires the EPA to do a system-wide cost-benefit analysis: https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pd... (see p. 10). The question isn’t the economic impact on the polluters per se, but the economic benefits of the use of the chemical versus the economic costs. For example, if asbestos was the only way to have fire-proof insulation, an economic analysis might well show that the benefit of having insulated houses that don’t burn down outweighs increased cancer deaths. This is a common requirement in most environmental statutes.
Sorry failed to call out I wasn’t delineating along typical party lines. Politicians, judges, gen pop; those empowered by past political and socioeconomic choices they ram down the futures throat are conservative quacks, full stop.
Preferring political/economic norms in the face of evidence it’s actively harmful is conservative quackery.
> Preferring political/economic norms in the face of evidence it’s actively harmful
What a laughable statement. The default state of humanity is scrounging around in the forest for scraps. All the prosperity around you is the result of a particular set of “political/economic norms” and once you’ve found a magic combination that results in the US rather than Afghanistan you should be extremely afraid to change anything. You’re standing high on a mountain your ancestors climbed up and there’s very little keeping you from falling back down it.
You should be particularly skeptical of new ideas, because according to Sturgeon’s law there’s a 90% chance it’s crap.
The past also screwed up a lot. At best their effort is a wash, still leaving little reason to deify them through intentional conservation of their legacy.
I’d qualify your default less literally; solving their problems with recursion and memoization
There are billions of people preventing implosion, none of us are an island unto ourselves. But since you bring it up…
If it goes bad for me, so what? Been there already; had to be zapped back to life. It all just goes dark. Quite peaceful relative to daily life, really.
On the upside, along with stem degrees, I spent my youth in farmland slaughtering and growing my own food, fixing heavy machinery. IMO one of the elders biggest mistakes is helping so many avoid the real work required to survive. I’m no Dick Proennekke, but neither are all the office workers who can’t even bake a potato let alone grow one (first hand experience with that; that was a very short romantic relationship).
Makes this economy that much harder to adjust and will probably just collapse given the lack of elasticity due to so many with so narrow a skill set.
Adam Smith is claimed to have written (paraphrasing) extreme division of labor will lead to humans as dumb as the lowest animal. I think this economic experiment has proven his 200 year old quote.
The economic impact requirements has lobbyist fingerprints all over it. Imagine if the FDA had to consider the economic impact of rejecting or accepting new therapeutics, or if the FBI can just decide not to prosecute some individuals because the economy would lose money!
All meaningful regulations will have negative economic impacts on those being regulated, that’s why the Republican conference loves de-regulation, it makes their donors and themselves more money!
The US has actually managed to shut down asbestos factories? I'm impressed.
Surely it's good that there is one country in the world that's prepared to allow unrestricted usage of any type of chemical, a kind of vast environmental petri dish, so that the rest of the world can find out exactly what the human effects will be?
It seems that conservatives in the US would be all in favour of taking this role. Perhaps it doesn't even need to be the entire country, but just a few conservative states?
Note that the court told the EPA to use the correct law, not that the basis for their actions was wrong:
>the conservative fifth circuit court of appeals court overturned the ban. The judges did not deny the containers’ health risks, but said the EPA could not regulate the buckets under the statute it used.
>The rule requires companies to alert the EPA if a new industrial process creates hazardous chemicals. Inhance has produced the containers for decades and argued that its process is not new, so it is not subject to the regulations. The EPA argued that it only became aware that Inhance’s process created PFOA in 2020, so it could be regulated as a new use, but the court disagreed.
>The fifth circuit judges wrote that the EPA would have to regulate the containers under Section 6 of the Toxic Substances Control Act (TSCA), which the judges and Inhance claim would require the EPA to take into account the economic impact on Inhance.
I agree with this ruling, laws should be enforced as-written by Executive Branch departments and agencies such as the EPA. Rewriting laws is the job of the Legislative Branch.
I’m not sure if I agree with this. If the EPA didn’t become aware of PFOA being used due to their negligence, then I would say the fault is on them. However, if they didn’t find out about it due to subversion on behalf of Inhance to hide them using PFOAs, then I would disagree with the ruling. I wish the article provided more information about the specific arguments
Inhance used (and uses) their fluorination process "for decades", but the fact it generated PFOA only became known in 2020 (edit: article is wrong; was cited by EPA in 2022).
Because the law states "new" use, the court threw out the EPA's "we found PFOA coming out of this in 2020 (edit: 2022, see above edit), this is new use" argument as hogwash. I agree with this ruling, because I presume this is all English.
It makes some sense for companies to be protected from governmental over reach. Like activist agency could ban any process and destroy companies if some of their processes generate something that might be carcinogenic. Even if this process had gone on for millennia.
If government wants to ban something there should be reasonable path followed.
From the Declaration of Independence, which doesn't have legal authority per se but is revered as one of the country's foundational documents together with the Constitution:
>We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Pursuit of happiness includes having the right to try running a business and making it successful.
And from the Constitution, its preamble:
>We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The establishment of justice, promoting the general welfare, and securing the blessings of liberty by the people for the people means the government cannot prohibit someone from running a business without following due process and citing due causes.
And as a catch-all, from the Ninth Amendment:
>The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The relevant statute[0] says that companies are required to notify the EPA before they start manufacturing new chemicals. So knowingly hiding a new chemical from the EPA would be a risky play, if the government found out the company (and more importantly the people involved) would presumably be in deep shit.
I read through the ruling since I have some time now, and it's even more damning for the EPA:
>In response to growing concerns about PFAS, the EPA proposed a new SNUR in January 2015, “designating as a significant new use manufacturing . . . or processing of an identified subset of [PFAS] for any use that will not be ongoing after December 31, 2015, and all other [PFAS] for which there are currently no ongoing uses.” 80 Fed. Reg. 2885 (Jan. 21, 2015). Under the SNUR section entitled “Does this action apply to me?” the EPA included a non-exhaustive list of industries that might be affected by the SNUR. Id. at 2886. Those industries included fiber, yarn, and thread mills; carpet and rug mills; home furnishing merchant wholesalers; carpet and upholstery cleaning services; and chemical manufacturing and petroleum refineries. Id. Notably, the fluorination industry was missing from the list, as was any industry with the same North American Industry Classification Code4 as the fluorination industry. See id. The proposed rule also made clear that the SNUR would apply only to “any use not ongoing as of the date on which this proposed rule is published.” Id.
>In July 2020, the EPA promulgated the final SNUR. 85 Fed. Reg. 45109 (July 27, 2020). Like the proposed rule, it included a list of industries that might be affected by the SNUR. Id. at 45110. That list included other industries in addition to those already stated in the proposed rule, but it still did not include the fluorination industry. See id. The SNUR went into effect without any challenges.
So basically, the EPA specifically exempted ongoing uses as of and after 2015 which obviously includes Inhance's decades-old fluorination process. This is also consistent with the "new use" language of Section 5.
Not only that, the EPA did not include fluorination both in their 2015 and 2020 rulemaking for regulating.
>The EPA issued Inhance a Notice of Violation of the SNUR in March 2022 after confirming the presence of PFAS in a pesticide that had been stored in containers fluorinated by Inhance. Though Inhance did not stop fluorinating containers, it attempted to engage with the EPA through the SNUN process. Despite submitting SNUNs for its products, Inhance maintained that its fluorination process was not covered by the SNUR and that Inhance’s SNUNs were not “admission[s] of fact” or a concession that the SNUR was “legally applicable to the Company’s fluorination.”
>In December 2023, the EPA determined that three PFAS manufactured by Inhance presented an unreasonable risk of injury to human health and the environment and six additional PFAS manufactured by Inhance may do so. It therefore issued a Section 5(f) order for the first three PFAS, requiring Inhance to stop manufacturing and processing those PFAS. And it issued a Section 5(e) order for the remaining PFAS, requiring Inhance to stop manufacturing or processing the PFAS, “at least until Inhance completes further testing to address information gaps identified during the review.” Inhance timely petitioned this court for expedited review of the EPA’s orders.
The EPA then ordered Inhance to stop using its fluorination process in 2022 and 2023, citing PFAS, and citing regulations which exempted ongoing uses as of and after 2015 and which did not include fluorination.
Inhance for their part apparently tried to sort this out with the EPA, but appealed to the courts because that didn't work.
This is just damning. The government should not be able to "well akshually" and pull regulations out of thin air. The court is right to order the EPA to do their work properly.
Watching the empire crumble in real time is an extremely challenging place to be. Seeing our government say, "yes, there's obvious risk to human health, and it's a totally preventable risk, but we hate the epa more than we care about good outcomes" is tragic. Combined with the criminal attitude from the company manufacturing these things. "We know this is harmful, but we've been doing it for over a decade so we can't stop now."
Oh, total agreement. Even Obama was pretty damn bad (gonna end those pointless, expensive wars that’re still killing people? No? Just… gonna keep doing that for some reason? Huh, weird choice, but ok. Could we at least close Guantanamo like you said you would? Also no? Ok well I guess at least we helped destabilize the Maghreb for no reason, great, love that, oh and look you’ve intervened in Syria juuuuust enough to keep it going but not enough to end it the way we’d prefer, causing untold misery, how very hopeful!)
Carter’s the last one who might have been good, but was dealt a shit hand and then had dirty tricks at America and Americans’ expense played against him by his reelection opponent, so, hard to say if he’d have turned it around and become effective. Wasn’t effective with the years he did have, though.
Obama tried to close Guantanamo but couldn’t get Congress to go along with it. Presidents in the USA don’t have total power, it’s not like China where Xi gets an almost one hundred percent vote on all his plans. A lot of the things going on that America gets involved with just have bad and worse solutions, if you get the job you either have to make those bad decisions (because the other ones are worse) or just go isolationist (the world still burns, it’s just not the USA’s fault anymore).
There’s zero chance he couldn’t have shut it down. Military installation. C in C. He could have found a way and it wouldn’t even have taken much effort. He just wanted the political cover of consent from congress and chickened out when he couldn’t get it.
From what I remember, Congress refused to let the prisoners be kept on the mainland, so ya, Obama could shut it down but then what? We’ve already released or sent to prisons in other countries, what we can, but there are some weird edge cases (30) that need congressional authorization to deal with. In many cases the USA can’t even send these people back to their home countries (eg Uighurs and China), so the only option would be to let them settle in the USA as refugees. A lot of people are really against that.
I tend to agree with analyses that factor in the relative weakness of the US executive on some fronts, but in this case it’s a situation AFAI recall entirely created by the executive. Novel and probably very fucking illegal classification for the prisoners? An executive invention. Decision to put them where they are now? Executive. Operational control of that facility? It’s military, so, executive. Decision not to move forward with (if nothing else) military trials in all cases, and just hold some of them indefinitely? Executive.
How could it not be possible for the executive to undo a situation that was 100% its creation? Fact is, there was no actual will to follow through, and probably never was an intention to try very hard to begin with.
[edit] it wouldn’t bother me much except 1) he said he’d do it, already well aware of the challenges and kinds of push-back he’d see, then didn’t do more than try one weak-sauce approach that let him pass the buck and shrug; cowardly as hell, and 2) it was probably the least messy part of the Bush-era disaster to untangle, as far as military and international affairs go (not forgetting the economic crash), and he couldn’t even do that much. If he’d made good progress on the other, worse parts, I’d probably entirely excuse this failure, but he didn’t.
They are definitely executive inventions. The problem is that Obama didn’t invent those, he inherited a mess from the last guy. Yes this could have all been avoided by simply not keeping people in Guantanamo. But yes, if Obama couldn’t untangle the least messy part of Bush, he didn’t have much hope of untangling the messier parts of bush, which didn’t happen either. The whole Bush legacy is just one train wreck after another that are still haunting us. I shudder to think what damage Trump could have done if he was as competent in his execution as Bush.
We are (mostly) computer scientists, and should realize that reversing something isn’t always feasible with the same amount of energy, or even any amount of energy. Some things are just broken and are going to stay that way (well, the prisoners will eventually age out).
Yeah, amicable disagreement on some fine points there but bigger picture I’d say we’re not too far apart.
Agree that it seems everyone’s decided we’re just gonna wait until they all die. I can’t recall the last time I encountered a story about the “detainees”, even—it’s on nobody’s radar, which, to be fair, there’s been some other stuff going on. Christ, I hope all the ones left are actually-really-bad, what an absolute nightmare if they’re not, and I guess the public will never really find out for sure. For that matter, how depressing must it be to be to work in that prison complex? Guarding prisoners we’ve dragged halfway around the world just to stick in cages, spending way more on each (capture, transportation, indefinite detention) than they’d probably collectively have made in their lives, who’ve already been there for many years, who’ve been forgotten and will never see justice anywhere near the standard we usually expect, just waiting for the poor souls to kick the bucket so we can finish entirely forgetting about them. Oof. Must be demoralizing as hell.
Hard nope on this. Obama trying was performative, he didn't try very hard. Lets keep the discussion to US presidents and their power, talking about what Xi can do isn't germane.
The point is to compare an executive with absolute power, to an executive who has to share it with two other branches. It isn’t a what aboutism, the president can’t just unilaterally make decisions that fall out of the purview of executive orders, and even executive orders are really fragile.
No but they can try harder, not make a shitty performative effort and then move on. That is exactly what Obama did on Guantanamo, the single largest abhorrent stain on what it means to be an American. An extra-legal torture base in Cuba makes us all murderous hypocrites. This is on Trump and Biden as well. Obama deserves the heat because that is what we hired him for. At this point we aren't letting the tortured out because of our embarrassment.
Executive Orders are the bondo of American democracy.
Do you really not understand why process and rules matter in government?
The whole point of a system of rights and courts is that when the government wants to end your decades old business through administrative authority, they at least have to write a report on why, specifically — and they can’t claim that this is “new” to skip that step. That is what this ruling says.
Upholding laws and protection against government authority is also a good outcome.
They didn’t claim that it was new. They claimed it should be tried as new as they only became aware of the illegal part of the process recently, and I agree with that.
Being able to hide your bullshit for a few years until it’s established being a way of avoiding a much harder process to win for you is bonkers.
Allowing businesses to create known health risks by illegally operating and then saying “well it isn’t new NOW” is idiotic and a horrible outcome.
Isn't it crazy that the government can outlaw marijuana for decades start a 'war' against anyone who tries to consume it or produce/distribute it for business purposes, but it just can't seem to regulate this kind of shit?
How come there can be green teams jackbooting grow rooms but there can't be a PFAS team jackbooting factories spewing known toxic substances into the environment?
The war on drugs - marijuana specifically - is a war against the black community, as was admitted by Nixon's domestic policy chief[0].
Meanwhile, DuPont, 3C and other companies spend multiple millions of dollars on lobbying, political donations and bribery to ensure favorable laws and lax regulation. See the decision from the court in TFA - the concern for business overrides concern for public health.
It isn't crazy, it's just America. White supremacy and capitalism will always be the priority.
Stopping corporations from ravaging the only planet we have to live on and exposing millions to carcinogenic compounds vs the war on drugs is completely apples and oranges.
I seriously hope that your evaluation of these scenarios is based on the reality of their individual outcomes rather than “gubment bad durr”
I'm commenting on the fact that it's totally legal and feasible to do the war on drugs but when it comes time to muster that same kind of force against actual poisons being spewed into our environment all sorts of people trickle out of the woodwork to say that it's unconstitutional, infeasible, an overreach of power etc...
but should the law then allow you to produce in 2024, spanking factory new 1990 Lincoln without a camera because thats how you have been making them for 40 years
Of course I do. But laws are written and enforced by people, and those people have their own interests and biases.
I'm lamenting that the laws we have and the people enforcing them seem to bias towards profits at the expense of health. That is more important to make a small count people wealthy over a large number healthy.
> The EPA may not contort the plain language of [the Toxic Substances Control Act (TSCA)]’s Section 5 to deem a forty-year-old ongoing manufacturing process a “significant new use” subject to the accelerated regulatory process provided by that part of the statute. In other contexts, “new” may have nuanced meanings, but its meaning in the statute before us is plain, and plainly prohibits the EPA’s December 2023 orders aimed at Inhance.
> We hasten to add that our ruling to this effect does not render the EPA powerless to regulate Inhance’s fluorination process. The agency can properly proceed, abiding the APA’s procedural guardrails, under TSCA’s Section 6 by conducting inter alia the appropriate cost-benefit analysis required for ongoing uses—a proposition even Inhance concedes. The EPA is just not allowed to skirt the framework set by Congress by arbitrarily deeming Inhance’s decades-old fluorination process a “significant new use.” See Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 105–06 (2015).
> The rule requires companies to alert the EPA if a new industrial process creates hazardous chemicals. Inhance has produced the containers for decades and argued that its process is not new, so it is not subject to the regulations. The EPA argued that it only became aware that Inhance’s process created PFOA in 2020, so it could be regulated as a new use, but the court disagreed.
So basically, any company that begins using a process that produces large quantities of hazardous chemicals is now incentivized to hide it until that process is no longer 'new' so that substantial new use rules won't apply to them? I'm sure there's no way this could go wrong.
That requirement only exists once the EPA has created the rule. What the 5th Circuit has just said is that if you've been using a hazardous process for a while by the time the EPA creates such a rule, even if the EPA and public did not know about it, then SNURs can't be applied. In this case, the EPA tried to regulate PFAS in 2020, but since Inhance had been using them since the 80s (without anyone knowing), the rule was struck down. So any company that begins using a hazardous process is incentivized to keep that secret for long enough that the EPA can no longer create an SNUR regulating it.
This is wild. The argument to vacate the EPA order hinges primarily on dictionary definition of “new”. Pulling the same shit as SCOTUS did to undo Roe v Wade.
Since the fluorination process is a “decades old” process. Therefore it doesn’t apply under the “significant new use regulation” of PFAS. Therefore, company did not need to submit application (even though PFAS is clearly generated or used…)
I am not a lawyer, so could be completely wrong here
And they specifically ignored what the statute actually says in order to get there. It's super clear from the statutory text that "significant new use" is just "a use" the EPA has determined meets certain listed criteria. In other words, it's not "a new use" the EPA determines is significant. Nor is it "a significant use" that the EPA determines is new. It's just a use of a chemical that the Administrator determines meets certain criteria, and the statute just happens to call that a "significant new use."
I mean, it really couldn't be clearer from the statutory text and structure. Which makes the 5th Circuit utterly ignoring it even more egregious.
Statutory interpretation?! We don't need no stinking statutory interpretation. We have dictionaries!
> In other words, it's not "a new use" the EPA determines is significant. Nor is it "a significant use" that the EPA determines is new. It's just a use of a chemical that the Administrator determines meets certain criteria, and the statute just happens to call that a "significant new use."
Well, you didn't mention the criteria. The terminology might be clearer after looking at them:
> §2604(a)(2) A determination by the Administrator that a use of a chemical substance is a significant new use with respect to which notification is required under paragraph (1) shall be made by a rule promulgated after a consideration of all relevant factors, including—
> (A) the projected volume of manufacturing and processing of a chemical substance,
> (B) the extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance,
> (C) the extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance, and
> (D) the reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
Factor (A) asks whether the use is significant. (And, at the very least, strongly implies that the use must be new - the inquiry is into "projected volume", not realized volume.) Factors (B) and (C) ask whether it's new - if you're considering a process that has been going on for decades, it cannot change the type or form, or increase the duration or magnitude, of exposure to the output of that process, because people (and the environment, etc...) already have the type and level of exposure that is the result of that process. [They also ask whether it's significant, by considering relative levels of exposure ("change in magnitude or duration") as opposed to absolute levels of manufacturing.]
This tends to imply that an insignificant new use could grow into a significant old use over time (as manufacturing volume ramps up), and that in such a case, the EPA should have the option to deem that growth a "significant new use" (relying on factors (A) and (C)), but I don't get the impression that that was the argument here?
You're making the mistake of thinking "significant" here has some independent semantic meaning that must be read into the text. First, it doesn't; it's a descriptive label of the kinds of a "new use" that, if the Administrator determines fits the four criteria, is subject to statutory requirements. Second, A says nothing about significance. It says the Administrator must take into account the projected volumes involved.
As for the rest, I think what's tripping everyone up is that "use" isn't just any old use out in the world. The Code of Federal Regulations defines in great and painful detail what kinds of uses are subject to regulation: see 40 CFR Part 721, subpart B (https://www.law.cornell.edu/cfr/text/40/part-721/subpart-B).
Manufacturers have to submit a notice of the uses they are putting the chemicals to. That gets reviewed by EPA. If EPA approves, that use (or the corresponding part in 40 CFR 720) is added to the chemical's listing in subpart E (see https://www.law.cornell.edu/cfr/text/40/part-721/subpart-E). But if EPA finds out that a chemical is being used in practice in a way that matches subpart B, but isn't listed in subpart E because no one sent the required notifications, they can take various actions to force compliance (under various penalties). When the manufacturer complies and submits the appropriate notifications, the use gets added to the chemical listing in subpart E.
> You're making the mistake of thinking "significant" here has some independent semantic meaning that must be read into the text.
Well, I explicitly said the opposite about "new"... is there any part of my comment that makes you think I had a different opinion about "significant"? Did you read more than those 8 words?
> Second, A says nothing about significance. It says the Administrator must take into account the projected volumes involved.
The only way for these two sentences to be compatible with each other is if you don't know what "significant" means.
How do you imagine projected volumes would be taken into account?
You’re confusing state governments with the federal government. State governments are not governments of enumerated powers. They inherited the plenary authority of the British parliament, and have general police powers to regulate the health, welfare, and morals of citizens. That includes regulating medical procedures and defining various types of homicide. They could make laws banning eating meat on odd numbered days.
Those powers are only limited if there’s a state or federal constitutional right that prohibits that exercise of general police powers.
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Yes, the government can’t conduct warrantless searches of any part of your body. It takes either very poor reading comprehension or affirmative bad faith to pretend that has anything to do with the government regulating medical procedures, or defining the parameters of homicide.
One of several drawbacks to having something "seized" is that you lose control over it.
So if (as you say) I don't control my own uterus, which certainly falls under the domain of my "person" under 4A law, and if the government can't assert control over its contents without a warrant, also according to 4A, then who does control it?
You don't believe the argument you've made here, and have spent years making the opposite argument vis a vis incorporation. If you were right, I'd get to take your guns away.
I pretty sure I’ve never said that state governments have any inherent limits to their police powers. I think banning guns undoubtedly is within the states’ police powers. So is banning adultery, or gambling, or eating dinner after 8 pm.
But as I said above: “Those powers are only limited if there’s a state or federal constitutional right that prohibits that exercise of general police powers.”
Vis-a-vis the comment I was responding to above, if I want to say the government can’t take my guns, I have to affirmatively point to somewhere in the federal constitution or the state constitution that says that. (Luckily for me there’s a whole amendment about guns; guns don’t even have to share an amendment with other rights, like free speech which has a bunch of roommates in the first amendment.)
I also agree that if incorporation didn’t exist, states could ban guns notwithstanding the second amendment. And incorporation may well not exist, but that’s an argument for a different day.
> State governments are not governments of enumerated powers. They inherited the plenary authority of the British parliament, and have general police powers to regulate the health, welfare, and morals of citizens.
How fortunate then that we have the 14th Amendment to prevent state governments from "abridg[ing] the privileges and immunities of citizens of the United States" — which textualists and originalists presumably would say can be authoritatively defined by the Congress using its enforcement power under section 5 of 14A.
So if the Dems retake the House and keep the Senate in 2024, then we can expect federal legislation reinstating women's Roe rights as "privileges and immunities of citizens of the United States," no matter what the Taliban wing of "Christianity" in Texas, Missouri, etc., might prefer.
Can Congress define new “privileges and immunities” under Section 5? I think you might have a federalism problem, insofar as both medical procedures and The definition of homicide are traditionally regulated by the states. But if you can get around that, sure.
My point is simply that state governments get to regulate both morality and medical procedures unless some higher law says they can’t. Notions of individual choice and personal autonomy don’t by themselves constrain state power in any way.
I don't recall seeing the word federalism in the Constitution. Yeah, there's the Tenth Amendment. But one could make a compelling textualist argument — and perhaps even a historical one — that the Civil War Amendments were explicitly and broadly intended to trump (pardon the expression) the Tenth, and not just concerning the liberation of formerly-enslaved blacks.
Then again, some of the SCOTUS conservatives seem to move the goalposts whenever it seems good to them. And in any case, Breyer-style "traditionalism" doesn't seem to be part of their toolkit.
> The suit references forthcoming research indicating that PFAS (polyfluoroalkyl substances) may leach from HDPE plastic containers into everyday products.
From the article:
> A peer-reviewed study in 2011 found Inhance’s containers leached the toxic compounds into their contents.
This is why people trusting ML rewrites is sad. Obviously this seems less cut and dried if you hallucinate new “facts”
The final paragraph is even more error riddled. Check the actual article content:
> Since 2020, Inhance appears to have repeatedly lied to regulators and customers about whether PFAS leached from its containers, and for several years resisted EPA’s demands to submit its process for review.
If you think reading this rewrite is a good use of time, you’re wrong.
Please don’t post lies that a computer told you because you like them more than journalism.
For anyone else who always wondered what this circuit thing is and what happened to versions one through four: appeal courts in the USA seem to be numbered one through eleven, each having a few states they serve, and the group of states is called a "circuit". The word apparently has a meaning of a geographic region, so that's where that comes from (I only heard the word used for electric circuits, besides seeing this Nth court name a few times now). The judges in higher courts (like these, it seems) are chosen by the currently elected president whenever seats in the court become vacant, if I remember correctly.
What's still unclear to me is why the article consistently calls it "the conservative fifth circuit court" as though that is part of its name (or as though there is another nonconservative one), whereas Wikipedia uses no such phrasing that I can find. Is that an artifact of the news medium being of "the other side" and wanting to emphasise that most of the judges were chosen by a party they don't like? Or are most judges party members, or how is this label decided? And isn't the whole point of being a judge that you're impartial, are they subtly alleging the court is partial to whatever laws are made by one of the two major parties or something?
Edit: I'm not sure what this reads like to y'all but it was meant as a genuine question with what I've already figured out for anyone else who doesn't know this (probably most international visitors, I figured)
> And isn't the whole point of being a judge that you're impartial, are they subtly alleging the court is partial to whatever laws are made by one of the two major parties or something?
Federal appellate judges are typically appointed due to their association with one of the two parties and often because they have a history of rulings favoring a certain party’s ideology in lower federal or state courts. They are officially impartial but everyone working within the system recognizes there’s tilts, and the media does too. A clear example of this is that they typically time their retirement so the party that originally appointed them can replace them.
I believe in some other countries the judiciary appoints their own replacements and in that case the ideology / politics of the judicial branch may diverge more from the legislative political parties.
Basically, the sitting president appoints circuit judges to a lifetime position. The judicial candidates are selected by senators from whichever state the judge is to be appointed.
Generally, a conservative president will only nominate conservative judges. The candidates will generally be even more conservative if the senators who nominated the candidates are also conservative.
Over time, court watchers can conclude how ideologically predisposed a judge is based on their opinions. Usually, judges appointed by conservative presidents tend to rule as conservatives (that is, side with Republican positions), and vice versa with judges appointed by democrats. This trend is so consistent that you can often predict the outcome of a case from the composition of judges hearing the case.
The Fifth Circuit is dominated by republican senators and has recently seen a lot of appointments filled by Donald Trump. As a result, the Fifth Circuit overwhelmingly rules more conservatively than its sister circuits.
In this case, the fifth circuit panel ruled against the EPA in favor of commercial plastic producers. This is in line with Republican goals to erode the power of administrative agencies. Nobody is surprised by this because the Fifth Circuit operates in service of the Republican Party. As we say, you don’t bite the hand that feeds you.
The Fifth is the same that banned a useful, highly reliable drug that can be used for abortions, on the grounds that some doctors might have to deal with the consequences of something went wrong.
Nobody is even pretending that this case has any actual legal merit. Even the right wing Supreme Court is having a hard time finding a reason to uphold it.
I assumed this ruling came from the fifth circuit when I read the headline, but this comment you made strikes even me as a bit too cynical of how the judiciary works:
> Nobody is surprised by this because the Fifth Circuit operates in service of the Republican Party. As we say, you don’t bite the hand that feeds you.
These judges are not necessarily being "fed" in the corrupt way that connotes. They are people operating in accordance with their nature, and they were selected carefully during their appointment, but they might very well be capable of judicial and political independence. Lifelong appointment and all.
First, the name "circuit" comes from the old practice of judges "riding circuit." Their circuit was the geographic territory assigned to them. They'd be responsible for hearing appeals in that limited geographic region, and they'd literally ride around the area (on an established schedule) hearing appeals from cases that came up in different parts of their assigned area. It was a way of providing easier access to appellate courts than requiring everyone come to one centralized place in the region.
Second, about the structure of the courts: in the federal judiciary, there are federal district courts (roughly, where trials happen), federal circuit courts, and the Supreme Court. There federal circuit courts are courts of appeal that sit one level above the district courts. There are 13 federal circuits. There are the First through the Eleventh Circuits, as you note. There's also the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit), as well as the U.S. Court of Appeals for the Federal Circuit (the Federal Circuit). That last one is extremely unhelpfully named, since they're all "federal circuits." The Federal Circuit hears certain types of cases specially designated for it to hear (for instance, patent appeals and appeals from two lower federal courts established for specialty jurisdiction). The numbered circuits and the D.C. Circuit are geography-based. If you're wondering why D.C. needs its own circuit, consider the metric fuckton of administrative rules and regulations made by the federal government. That mainly happens in D.C. It's more complicated than that, of course, because Congress will write into certain statutes that the D.C. Circuit has jurisdiction over appeals of challenges to those statutes. Other times, litigants may choose to sue an agency in one of the other regions.
Third, the 5th Circuit is unquestionably and unarguably conservatively aligned, just as the 9th Circuit used to be unquestionably and unarguably liberally/progressively aligned. The label is decided by looking at both outcomes and reasons given for those outcomes. Pick a hot political topic. Pick a legal case involving that topic in some way. It's extremely predictable how the 5th Circuit will rule. None of this is controversial. The controversy would come from taking the next step: if you say, "Well, they're mostly right." That makes you a conservative, and that enlists you in political controversy. Because as a factual matter, they have a historically fairly high reversal rate (i.e., among the 5th Circuit cases the Supreme Court grants cert. on, the 5th Circuit gets reversed ~80+% of the time), so they're not right in the sense that the Supreme Court agrees and thus their rulings are usually the law of the land.)
But they grant cert in only a truly tiny percentage of all cases they get petitioned to hear, and the thing we're interested in looking at is the inter-circuit reversal differential.
I wish I could find more fine-grained statistics than what I know off the top of my head is available (StatPacks from ScotusBlog, but there seems to be no aggregation of them, just individual ones for like 25 years; Empirical Scotus, but I see no data available to play with, just posts). I also wish I were better at statistics.
Judges are supposed to be impartial but they're still just human. Moreover even when they are perfectly impartial (and the US is more lucky than they appreciate in how professional their federal judiciary is, particularly compared to the other branches) there are different kinds of judicial philosophies that can influence how laws are interpreted (which is particularly important since the US operates under a common law system) so these currents can be classified as broadly embraced by liberals/conservatives
Aside from the other comment regarding who appointed the judges
> chosen by the currently elected president whenever seats in the court become vacant
This is incomplete, the judges are nominated by the executive but have to be confirmed by the senate
Until recently (first Obama term I think) practically speaking a judge needed 2/3 of the senate to be confirmed, therefore in practice judges had an incentive to at least appear as moderate if they wanted to get eventually promoted.
Now that they need just a simple majority this incentive is gone and, since courts have been progressively been forced by politicians to make decisions for them, it arguably is reversed since now presidents with a majority in the senate will want to propose the most partisan judge they can get through their own party and lower judges know this
This ruling is both crazy and par for the course for the 5th Circuit. I live in the 11th Circuit, which is notably nutty, but the 5th Circuit proudly outshines us in the firmament of madness. Here's why the decision is crazy:
The panel essentially relies on ordinary meaning analysis of "significant new use" to decide that this (the company fluorinating its products) can't be a significant new use because it has been in business for 40+ years and that surely is not "new." The court goes that route because it says "significant new use" is not defined in the statute, 15 U.S.C. § 2604 [0]. Let's open our hymnals just to make sure that's true.
§ 2604(a)(1)(A)(i) is a prohibition on manufacturing a "new chemical substance" unless certain procedures are followed allowing the EPA to make a determination about it. Ok, this is definitely not a case about a new chemical substance. The statute talks about "significant new use" in the next subparagraph, § 2604(a)(1)(A)(ii): no person may "manufacture or process any chemical substance for a use which the Administrator has determined, in accordance with paragraph (2), is a significant new use."
Reread that subparagraph. It is up to the EPA Administrator to determine whether "a use" is a "significant new use." Well, how is s/he supposed to do that? "[I]n accordance with paragraph (2)," i.e., by following 15 U.S.C. § 2604(a)(2). In other words, whether some "use" is a "significant new use" is determined within the statutory boundaries erected in 2604(a)(2). "Significant new use" just means "a use meeting criteria listed under 2604(a)(2)." There is no other meaning for the term. It's a statutory term of art. You could call it a BongoBoomBah. If the Administrator determines that manufacturing or processing a chemical for a use is a BongoBoomBah, then no person may manufacture or process that chemical for that use. How does the Administrator decide a use is a BongoBoomBah? Look at 2604(a)(2): the Administrator promulgates a rule "after a consideration of all relevant factors, including" four specifically identified factors. If the Administrator promulgates a rule that the use is a BongoBoomBah after following the statutory guidelines, the use just is a BongoBoomBah, end of story.
But the 5th Circuit doesn't bother with any of that. They look at the definitions section, see "significant new use" isn't specifically defined, then throw up their hands and say, well, new means new, so if it's not a new use, it can't be a significant new use, ergo case dismissed. No parsing of the actual statutory text or structure. It's gotcha jurisprudence.
But it's the 5th Circuit, so... par for the course.
> If a reasonable person can't read the law and determine how not to be a BongoBoomBah then...
You haven’t spent much time reviewing actual laws in the US if you think the common person should be able to easily decipher the meaning. They are generally incredibly difficult to decipher if you’re trying to read them based strictly on your understanding of the layman definition of a word.
You almost always have to read the full thing to get context and even then will have to cross reference multiple times to figure out the legal definition of the language in use. It frequently deviates from how those words are used in common speech.
I still don't understand how an existing use can be redefined as a "significant new use" based solely on the discretion of the EPA Administrator. They were presumably making buckets using a specific method before it was determined that it may have health consequences and is therefore a "significant new use" based on this knowledge instead of, say, they created a novel method to make buckets.
Maybe tomorrow they discover pulping paper with water harms sea turtles therefore pulping paper with water is a significant new use of trees.
As for the rest, I think what's tripping everyone up is that "use" isn't just any old use out in the world. The Code of Federal Regulations defines in great and painful detail what kinds of uses are subject to regulation: see 40 CFR Part 721, subpart B (https://www.law.cornell.edu/cfr/text/40/part-721/subpart-B).
Manufacturers have to submit a notice of the uses they are putting the chemicals to. That gets reviewed by EPA. If EPA approves, that use (or the corresponding part in 40 CFR 720) is added to the chemical's listing in subpart E (see https://www.law.cornell.edu/cfr/text/40/part-721/subpart-E). But if EPA finds out that a chemical is being used in practice in a way that matches subpart B, but isn't listed in subpart E because no one sent the required notifications, they can take various actions to force compliance (under various penalties). When the manufacturer complies and submits the appropriate notifications, the use gets added to the chemical listing in subpart E.
It seems obvious that the legislators intended this to apply to new uses, not existing uses. How do they pass a law that doesn't actually mean this?
Were the drafters incompetent? Is it some kind of con where they deliberately pass a law that appears to say one thing but actually says something else?
109 comments
[ 0.23 ms ] story [ 196 ms ] threadI’m curious your thought process on how you made that conclusion.
I’m starting to feel like I should just accept that the legal community matches how I view the world, and it’s a more relevant and powerful way to view the world.
Stage 3 is letting decades of this nonsense erode this "academic" view and saying enough is enough.
I don't care what bureaucratic legalese these assholes are guarding their motives with, it's all 100% down to money. Money is flowing here between corporations and government, and that's the ultimate incentive behind these decisions.
what I can't get behind is your version where the authority you like can do anything you like in any way. you're assuming this is an example of "corrupt bureaucrats with a history of enabling, covering up, and abetting in rampant environmental disasters" and this is copypasta for any topic where something was curbed.
With that mindset we would still have Asbestos factories around. The economic situation of polluters should be completely outweighed by the health and environmental concerns of the population.
>TSCA section 6(b)(4) requires EPA to establish, by rule, a process to conduct risk evaluations. Specifically, EPA is directed to use this process to “determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant to the risk evaluation by the Administrator, under the conditions of use.”
https://www.federalregister.gov/d/2023-23428/p-52
Also, this was even linked right below the paragraph you cited.
Peer is not the court, it's a non-profit involved in the litigation. You can read the opinion, and the court doesn't tell the EPA to use section 6, just that they can't use section 5: https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pd...
Yes they do:
>Second, the EPA may regulate chemical substances under Section 6. See 15 U.S.C. § 2605. The mandate of Section 6 is broader than Section 5, in that Section 6 applies to all chemical substances, not just new chemical substances or significant new uses of a chemical substance. See id. § 2605(a). However, the rulemaking process under Section 6 is also more rigorous than Section 5: It requires the EPA to conduct a cost-benefit analysis, weighing the negative effects of the chemical substance against the benefits of the substance and the economic consequences of prohibiting or limiting the substance. See id. § 2605(c)(2)(A)–(C). No such analysis is required under Section 5.
>We hasten to add that our ruling to this effect does not render the EPA powerless to regulate Inhance’s fluorination process. The agency can properly proceed, abiding the APA’s procedural guardrails, under TSCA’s Section 6 by conducting inter alia the appropriate cost-benefit analysis required for ongoing uses—a proposition even Inhance concedes. The EPA is just not allowed to skirt the framework set by Congress by arbitrarily deeming Inhance’s decades-old fluorination process a “significant new use.” See Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 105–06 (2015).
We banned the use of asbestos in most situations, and therefore lost the benefit of an excellent building and insulation material. But we decided that was a worthwhile tradeoff considering the well-established health impacts.
Since the outcome is unknown until after a huge amount of time and expense, how would you factor it in beforehand?
So in either case it makes no sense to try to factor in ‘market pressure’ beforehand.
Same holds for all extinct products, like leaded paints and leaded gasoline.
We can't really expect customers to make informed decisions about the large scale environmnetal and health impact of products, regulating them is exactly the job of the governing body.
That’s exactly the sort of thing that would be addressed in a cost-benefit analysis. If there’s good alternatives, the cost of the ban is lower. The issue isn’t whether expert agencies should be making these decisions, it’s that the expert agency here didn’t actually do the expert analysis the law requires.
The cost to humanity is enormous. The cost to a company is zero.
https://www.epa.gov/asbestos/asbestos-ban-and-phase-out-fede...
Preferring political/economic norms in the face of evidence it’s actively harmful is conservative quackery.
What a laughable statement. The default state of humanity is scrounging around in the forest for scraps. All the prosperity around you is the result of a particular set of “political/economic norms” and once you’ve found a magic combination that results in the US rather than Afghanistan you should be extremely afraid to change anything. You’re standing high on a mountain your ancestors climbed up and there’s very little keeping you from falling back down it.
You should be particularly skeptical of new ideas, because according to Sturgeon’s law there’s a 90% chance it’s crap.
I’d qualify your default less literally; solving their problems with recursion and memoization
There are billions of people preventing implosion, none of us are an island unto ourselves. But since you bring it up…
If it goes bad for me, so what? Been there already; had to be zapped back to life. It all just goes dark. Quite peaceful relative to daily life, really.
On the upside, along with stem degrees, I spent my youth in farmland slaughtering and growing my own food, fixing heavy machinery. IMO one of the elders biggest mistakes is helping so many avoid the real work required to survive. I’m no Dick Proennekke, but neither are all the office workers who can’t even bake a potato let alone grow one (first hand experience with that; that was a very short romantic relationship).
Makes this economy that much harder to adjust and will probably just collapse given the lack of elasticity due to so many with so narrow a skill set.
Adam Smith is claimed to have written (paraphrasing) extreme division of labor will lead to humans as dumb as the lowest animal. I think this economic experiment has proven his 200 year old quote.
All meaningful regulations will have negative economic impacts on those being regulated, that’s why the Republican conference loves de-regulation, it makes their donors and themselves more money!
Surely it's good that there is one country in the world that's prepared to allow unrestricted usage of any type of chemical, a kind of vast environmental petri dish, so that the rest of the world can find out exactly what the human effects will be?
It seems that conservatives in the US would be all in favour of taking this role. Perhaps it doesn't even need to be the entire country, but just a few conservative states?
Disclaimer: I live a safe distance from the US.
>the conservative fifth circuit court of appeals court overturned the ban. The judges did not deny the containers’ health risks, but said the EPA could not regulate the buckets under the statute it used.
>The rule requires companies to alert the EPA if a new industrial process creates hazardous chemicals. Inhance has produced the containers for decades and argued that its process is not new, so it is not subject to the regulations. The EPA argued that it only became aware that Inhance’s process created PFOA in 2020, so it could be regulated as a new use, but the court disagreed.
>The fifth circuit judges wrote that the EPA would have to regulate the containers under Section 6 of the Toxic Substances Control Act (TSCA), which the judges and Inhance claim would require the EPA to take into account the economic impact on Inhance.
I agree with this ruling, laws should be enforced as-written by Executive Branch departments and agencies such as the EPA. Rewriting laws is the job of the Legislative Branch.
I think you're misunderstanding something.
Inhance used (and uses) their fluorination process "for decades", but the fact it generated PFOA only became known in 2020 (edit: article is wrong; was cited by EPA in 2022).
Because the law states "new" use, the court threw out the EPA's "we found PFOA coming out of this in 2020 (edit: 2022, see above edit), this is new use" argument as hogwash. I agree with this ruling, because I presume this is all English.
If government wants to ban something there should be reasonable path followed.
>We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Pursuit of happiness includes having the right to try running a business and making it successful.
And from the Constitution, its preamble:
>We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The establishment of justice, promoting the general welfare, and securing the blessings of liberty by the people for the people means the government cannot prohibit someone from running a business without following due process and citing due causes.
And as a catch-all, from the Ninth Amendment:
>The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
That doesn't mean the right to inconvenience or potentially harm others in order for you to "pursue" something.
And also, corporations are legal entities. People are granted the right to pursue happiness, not corporations.
As for your other remarks, coming back to the predominant point: "Your right to swing your fist ends where my face begins."
https://www.law.cornell.edu/uscode/text/15/2604
>In response to growing concerns about PFAS, the EPA proposed a new SNUR in January 2015, “designating as a significant new use manufacturing . . . or processing of an identified subset of [PFAS] for any use that will not be ongoing after December 31, 2015, and all other [PFAS] for which there are currently no ongoing uses.” 80 Fed. Reg. 2885 (Jan. 21, 2015). Under the SNUR section entitled “Does this action apply to me?” the EPA included a non-exhaustive list of industries that might be affected by the SNUR. Id. at 2886. Those industries included fiber, yarn, and thread mills; carpet and rug mills; home furnishing merchant wholesalers; carpet and upholstery cleaning services; and chemical manufacturing and petroleum refineries. Id. Notably, the fluorination industry was missing from the list, as was any industry with the same North American Industry Classification Code4 as the fluorination industry. See id. The proposed rule also made clear that the SNUR would apply only to “any use not ongoing as of the date on which this proposed rule is published.” Id.
>In July 2020, the EPA promulgated the final SNUR. 85 Fed. Reg. 45109 (July 27, 2020). Like the proposed rule, it included a list of industries that might be affected by the SNUR. Id. at 45110. That list included other industries in addition to those already stated in the proposed rule, but it still did not include the fluorination industry. See id. The SNUR went into effect without any challenges.
So basically, the EPA specifically exempted ongoing uses as of and after 2015 which obviously includes Inhance's decades-old fluorination process. This is also consistent with the "new use" language of Section 5.
Not only that, the EPA did not include fluorination both in their 2015 and 2020 rulemaking for regulating.
>The EPA issued Inhance a Notice of Violation of the SNUR in March 2022 after confirming the presence of PFAS in a pesticide that had been stored in containers fluorinated by Inhance. Though Inhance did not stop fluorinating containers, it attempted to engage with the EPA through the SNUN process. Despite submitting SNUNs for its products, Inhance maintained that its fluorination process was not covered by the SNUR and that Inhance’s SNUNs were not “admission[s] of fact” or a concession that the SNUR was “legally applicable to the Company’s fluorination.”
>In December 2023, the EPA determined that three PFAS manufactured by Inhance presented an unreasonable risk of injury to human health and the environment and six additional PFAS manufactured by Inhance may do so. It therefore issued a Section 5(f) order for the first three PFAS, requiring Inhance to stop manufacturing and processing those PFAS. And it issued a Section 5(e) order for the remaining PFAS, requiring Inhance to stop manufacturing or processing the PFAS, “at least until Inhance completes further testing to address information gaps identified during the review.” Inhance timely petitioned this court for expedited review of the EPA’s orders.
The EPA then ordered Inhance to stop using its fluorination process in 2022 and 2023, citing PFAS, and citing regulations which exempted ongoing uses as of and after 2015 and which did not include fluorination.
Inhance for their part apparently tried to sort this out with the EPA, but appealed to the courts because that didn't work.
This is just damning. The government should not be able to "well akshually" and pull regulations out of thin air. The court is right to order the EPA to do their work properly.
Full ruling: https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pd...
My original post isn't a condemnation of a party, it's a condemnation of both parties working together to line their pockets while the ship sinks.
Carter’s the last one who might have been good, but was dealt a shit hand and then had dirty tricks at America and Americans’ expense played against him by his reelection opponent, so, hard to say if he’d have turned it around and become effective. Wasn’t effective with the years he did have, though.
How could it not be possible for the executive to undo a situation that was 100% its creation? Fact is, there was no actual will to follow through, and probably never was an intention to try very hard to begin with.
[edit] it wouldn’t bother me much except 1) he said he’d do it, already well aware of the challenges and kinds of push-back he’d see, then didn’t do more than try one weak-sauce approach that let him pass the buck and shrug; cowardly as hell, and 2) it was probably the least messy part of the Bush-era disaster to untangle, as far as military and international affairs go (not forgetting the economic crash), and he couldn’t even do that much. If he’d made good progress on the other, worse parts, I’d probably entirely excuse this failure, but he didn’t.
We are (mostly) computer scientists, and should realize that reversing something isn’t always feasible with the same amount of energy, or even any amount of energy. Some things are just broken and are going to stay that way (well, the prisoners will eventually age out).
Agree that it seems everyone’s decided we’re just gonna wait until they all die. I can’t recall the last time I encountered a story about the “detainees”, even—it’s on nobody’s radar, which, to be fair, there’s been some other stuff going on. Christ, I hope all the ones left are actually-really-bad, what an absolute nightmare if they’re not, and I guess the public will never really find out for sure. For that matter, how depressing must it be to be to work in that prison complex? Guarding prisoners we’ve dragged halfway around the world just to stick in cages, spending way more on each (capture, transportation, indefinite detention) than they’d probably collectively have made in their lives, who’ve already been there for many years, who’ve been forgotten and will never see justice anywhere near the standard we usually expect, just waiting for the poor souls to kick the bucket so we can finish entirely forgetting about them. Oof. Must be demoralizing as hell.
Good exchange, thanks for the perspective.
Executive Orders are the bondo of American democracy.
Obama was a bad president.
The whole point of a system of rights and courts is that when the government wants to end your decades old business through administrative authority, they at least have to write a report on why, specifically — and they can’t claim that this is “new” to skip that step. That is what this ruling says.
Upholding laws and protection against government authority is also a good outcome.
Being able to hide your bullshit for a few years until it’s established being a way of avoiding a much harder process to win for you is bonkers.
Allowing businesses to create known health risks by illegally operating and then saying “well it isn’t new NOW” is idiotic and a horrible outcome.
How come there can be green teams jackbooting grow rooms but there can't be a PFAS team jackbooting factories spewing known toxic substances into the environment?
Meanwhile, DuPont, 3C and other companies spend multiple millions of dollars on lobbying, political donations and bribery to ensure favorable laws and lax regulation. See the decision from the court in TFA - the concern for business overrides concern for public health.
It isn't crazy, it's just America. White supremacy and capitalism will always be the priority.
[0]https://eji.org/news/nixon-war-on-drugs-designed-to-criminal...
[1]https://www.foodandwaterwatch.org/2023/11/07/pfas-lobbying/
I seriously hope that your evaluation of these scenarios is based on the reality of their individual outcomes rather than “gubment bad durr”
I'm commenting on the fact that it's totally legal and feasible to do the war on drugs but when it comes time to muster that same kind of force against actual poisons being spewed into our environment all sorts of people trickle out of the woodwork to say that it's unconstitutional, infeasible, an overreach of power etc...
In the same way, if a law requires backup cameras on new cars, the law applies to new cars not to a 1990 Lincoln.
[1] https://nepis.epa.gov/Exe/ZyNET.exe/P100LTG6.TXT?ZyActionD=Z...
If an agency wants to expand it's purview, it is the job of the legislative branch to change the law.
I'm lamenting that the laws we have and the people enforcing them seem to bias towards profits at the expense of health. That is more important to make a small count people wealthy over a large number healthy.
> We hasten to add that our ruling to this effect does not render the EPA powerless to regulate Inhance’s fluorination process. The agency can properly proceed, abiding the APA’s procedural guardrails, under TSCA’s Section 6 by conducting inter alia the appropriate cost-benefit analysis required for ongoing uses—a proposition even Inhance concedes. The EPA is just not allowed to skirt the framework set by Congress by arbitrarily deeming Inhance’s decades-old fluorination process a “significant new use.” See Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 105–06 (2015).
Ruling of the U.S. 5th Circuit: https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pd...
“EPA overstepped its authority in PFAS order: Appeals court“: https://coastalreview.org/2024/03/court-halts-epa-orders-for...
So basically, any company that begins using a process that produces large quantities of hazardous chemicals is now incentivized to hide it until that process is no longer 'new' so that substantial new use rules won't apply to them? I'm sure there's no way this could go wrong.
> The rule requires companies to alert the EPA if a new industrial process creates hazardous chemicals.
Which seems unlikely to help them.
Since the fluorination process is a “decades old” process. Therefore it doesn’t apply under the “significant new use regulation” of PFAS. Therefore, company did not need to submit application (even though PFAS is clearly generated or used…)
I am not a lawyer, so could be completely wrong here
https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pd...
And they specifically ignored what the statute actually says in order to get there. It's super clear from the statutory text that "significant new use" is just "a use" the EPA has determined meets certain listed criteria. In other words, it's not "a new use" the EPA determines is significant. Nor is it "a significant use" that the EPA determines is new. It's just a use of a chemical that the Administrator determines meets certain criteria, and the statute just happens to call that a "significant new use."
I mean, it really couldn't be clearer from the statutory text and structure. Which makes the 5th Circuit utterly ignoring it even more egregious.
Statutory interpretation?! We don't need no stinking statutory interpretation. We have dictionaries!
Well, you didn't mention the criteria. The terminology might be clearer after looking at them:
> §2604(a)(2) A determination by the Administrator that a use of a chemical substance is a significant new use with respect to which notification is required under paragraph (1) shall be made by a rule promulgated after a consideration of all relevant factors, including—
> (A) the projected volume of manufacturing and processing of a chemical substance,
> (B) the extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance,
> (C) the extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance, and
> (D) the reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
Factor (A) asks whether the use is significant. (And, at the very least, strongly implies that the use must be new - the inquiry is into "projected volume", not realized volume.) Factors (B) and (C) ask whether it's new - if you're considering a process that has been going on for decades, it cannot change the type or form, or increase the duration or magnitude, of exposure to the output of that process, because people (and the environment, etc...) already have the type and level of exposure that is the result of that process. [They also ask whether it's significant, by considering relative levels of exposure ("change in magnitude or duration") as opposed to absolute levels of manufacturing.]
This tends to imply that an insignificant new use could grow into a significant old use over time (as manufacturing volume ramps up), and that in such a case, the EPA should have the option to deem that growth a "significant new use" (relying on factors (A) and (C)), but I don't get the impression that that was the argument here?
You're making the mistake of thinking "significant" here has some independent semantic meaning that must be read into the text. First, it doesn't; it's a descriptive label of the kinds of a "new use" that, if the Administrator determines fits the four criteria, is subject to statutory requirements. Second, A says nothing about significance. It says the Administrator must take into account the projected volumes involved.
As for the rest, I think what's tripping everyone up is that "use" isn't just any old use out in the world. The Code of Federal Regulations defines in great and painful detail what kinds of uses are subject to regulation: see 40 CFR Part 721, subpart B (https://www.law.cornell.edu/cfr/text/40/part-721/subpart-B).
Manufacturers have to submit a notice of the uses they are putting the chemicals to. That gets reviewed by EPA. If EPA approves, that use (or the corresponding part in 40 CFR 720) is added to the chemical's listing in subpart E (see https://www.law.cornell.edu/cfr/text/40/part-721/subpart-E). But if EPA finds out that a chemical is being used in practice in a way that matches subpart B, but isn't listed in subpart E because no one sent the required notifications, they can take various actions to force compliance (under various penalties). When the manufacturer complies and submits the appropriate notifications, the use gets added to the chemical listing in subpart E.
Well, I explicitly said the opposite about "new"... is there any part of my comment that makes you think I had a different opinion about "significant"? Did you read more than those 8 words?
> Second, A says nothing about significance. It says the Administrator must take into account the projected volumes involved.
The only way for these two sentences to be compatible with each other is if you don't know what "significant" means.
How do you imagine projected volumes would be taken into account?
Those powers are only limited if there’s a state or federal constitutional right that prohibits that exercise of general police powers.
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Yes, the government can’t conduct warrantless searches of any part of your body. It takes either very poor reading comprehension or affirmative bad faith to pretend that has anything to do with the government regulating medical procedures, or defining the parameters of homicide.
So if (as you say) I don't control my own uterus, which certainly falls under the domain of my "person" under 4A law, and if the government can't assert control over its contents without a warrant, also according to 4A, then who does control it?
But as I said above: “Those powers are only limited if there’s a state or federal constitutional right that prohibits that exercise of general police powers.”
Vis-a-vis the comment I was responding to above, if I want to say the government can’t take my guns, I have to affirmatively point to somewhere in the federal constitution or the state constitution that says that. (Luckily for me there’s a whole amendment about guns; guns don’t even have to share an amendment with other rights, like free speech which has a bunch of roommates in the first amendment.)
I also agree that if incorporation didn’t exist, states could ban guns notwithstanding the second amendment. And incorporation may well not exist, but that’s an argument for a different day.
How fortunate then that we have the 14th Amendment to prevent state governments from "abridg[ing] the privileges and immunities of citizens of the United States" — which textualists and originalists presumably would say can be authoritatively defined by the Congress using its enforcement power under section 5 of 14A.
So if the Dems retake the House and keep the Senate in 2024, then we can expect federal legislation reinstating women's Roe rights as "privileges and immunities of citizens of the United States," no matter what the Taliban wing of "Christianity" in Texas, Missouri, etc., might prefer.
My point is simply that state governments get to regulate both morality and medical procedures unless some higher law says they can’t. Notions of individual choice and personal autonomy don’t by themselves constrain state power in any way.
I don't recall seeing the word federalism in the Constitution. Yeah, there's the Tenth Amendment. But one could make a compelling textualist argument — and perhaps even a historical one — that the Civil War Amendments were explicitly and broadly intended to trump (pardon the expression) the Tenth, and not just concerning the liberation of formerly-enslaved blacks.
Then again, some of the SCOTUS conservatives seem to move the goalposts whenever it seems good to them. And in any case, Breyer-style "traditionalism" doesn't seem to be part of their toolkit.
> The suit references forthcoming research indicating that PFAS (polyfluoroalkyl substances) may leach from HDPE plastic containers into everyday products.
From the article:
> A peer-reviewed study in 2011 found Inhance’s containers leached the toxic compounds into their contents.
This is why people trusting ML rewrites is sad. Obviously this seems less cut and dried if you hallucinate new “facts”
The final paragraph is even more error riddled. Check the actual article content:
> Since 2020, Inhance appears to have repeatedly lied to regulators and customers about whether PFAS leached from its containers, and for several years resisted EPA’s demands to submit its process for review.
If you think reading this rewrite is a good use of time, you’re wrong.
Please don’t post lies that a computer told you because you like them more than journalism.
What's still unclear to me is why the article consistently calls it "the conservative fifth circuit court" as though that is part of its name (or as though there is another nonconservative one), whereas Wikipedia uses no such phrasing that I can find. Is that an artifact of the news medium being of "the other side" and wanting to emphasise that most of the judges were chosen by a party they don't like? Or are most judges party members, or how is this label decided? And isn't the whole point of being a judge that you're impartial, are they subtly alleging the court is partial to whatever laws are made by one of the two major parties or something?
Edit: I'm not sure what this reads like to y'all but it was meant as a genuine question with what I've already figured out for anyone else who doesn't know this (probably most international visitors, I figured)
Federal appellate judges are typically appointed due to their association with one of the two parties and often because they have a history of rulings favoring a certain party’s ideology in lower federal or state courts. They are officially impartial but everyone working within the system recognizes there’s tilts, and the media does too. A clear example of this is that they typically time their retirement so the party that originally appointed them can replace them.
I believe in some other countries the judiciary appoints their own replacements and in that case the ideology / politics of the judicial branch may diverge more from the legislative political parties.
Basically, the sitting president appoints circuit judges to a lifetime position. The judicial candidates are selected by senators from whichever state the judge is to be appointed.
Generally, a conservative president will only nominate conservative judges. The candidates will generally be even more conservative if the senators who nominated the candidates are also conservative.
Over time, court watchers can conclude how ideologically predisposed a judge is based on their opinions. Usually, judges appointed by conservative presidents tend to rule as conservatives (that is, side with Republican positions), and vice versa with judges appointed by democrats. This trend is so consistent that you can often predict the outcome of a case from the composition of judges hearing the case.
The Fifth Circuit is dominated by republican senators and has recently seen a lot of appointments filled by Donald Trump. As a result, the Fifth Circuit overwhelmingly rules more conservatively than its sister circuits.
In this case, the fifth circuit panel ruled against the EPA in favor of commercial plastic producers. This is in line with Republican goals to erode the power of administrative agencies. Nobody is surprised by this because the Fifth Circuit operates in service of the Republican Party. As we say, you don’t bite the hand that feeds you.
[1]: https://news.ycombinator.com/item?id=25473858
Nobody is even pretending that this case has any actual legal merit. Even the right wing Supreme Court is having a hard time finding a reason to uphold it.
> Nobody is surprised by this because the Fifth Circuit operates in service of the Republican Party. As we say, you don’t bite the hand that feeds you.
These judges are not necessarily being "fed" in the corrupt way that connotes. They are people operating in accordance with their nature, and they were selected carefully during their appointment, but they might very well be capable of judicial and political independence. Lifelong appointment and all.
Second, about the structure of the courts: in the federal judiciary, there are federal district courts (roughly, where trials happen), federal circuit courts, and the Supreme Court. There federal circuit courts are courts of appeal that sit one level above the district courts. There are 13 federal circuits. There are the First through the Eleventh Circuits, as you note. There's also the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit), as well as the U.S. Court of Appeals for the Federal Circuit (the Federal Circuit). That last one is extremely unhelpfully named, since they're all "federal circuits." The Federal Circuit hears certain types of cases specially designated for it to hear (for instance, patent appeals and appeals from two lower federal courts established for specialty jurisdiction). The numbered circuits and the D.C. Circuit are geography-based. If you're wondering why D.C. needs its own circuit, consider the metric fuckton of administrative rules and regulations made by the federal government. That mainly happens in D.C. It's more complicated than that, of course, because Congress will write into certain statutes that the D.C. Circuit has jurisdiction over appeals of challenges to those statutes. Other times, litigants may choose to sue an agency in one of the other regions.
Third, the 5th Circuit is unquestionably and unarguably conservatively aligned, just as the 9th Circuit used to be unquestionably and unarguably liberally/progressively aligned. The label is decided by looking at both outcomes and reasons given for those outcomes. Pick a hot political topic. Pick a legal case involving that topic in some way. It's extremely predictable how the 5th Circuit will rule. None of this is controversial. The controversy would come from taking the next step: if you say, "Well, they're mostly right." That makes you a conservative, and that enlists you in political controversy. Because as a factual matter, they have a historically fairly high reversal rate (i.e., among the 5th Circuit cases the Supreme Court grants cert. on, the 5th Circuit gets reversed ~80+% of the time), so they're not right in the sense that the Supreme Court agrees and thus their rulings are usually the law of the land.)
A better metric is the percentage of all cases. SCOTUS granting cert already indicates there's significant willingness to overturn more often than not
I wish I could find more fine-grained statistics than what I know off the top of my head is available (StatPacks from ScotusBlog, but there seems to be no aggregation of them, just individual ones for like 25 years; Empirical Scotus, but I see no data available to play with, just posts). I also wish I were better at statistics.
Aside from the other comment regarding who appointed the judges
> chosen by the currently elected president whenever seats in the court become vacant
This is incomplete, the judges are nominated by the executive but have to be confirmed by the senate
Until recently (first Obama term I think) practically speaking a judge needed 2/3 of the senate to be confirmed, therefore in practice judges had an incentive to at least appear as moderate if they wanted to get eventually promoted.
Now that they need just a simple majority this incentive is gone and, since courts have been progressively been forced by politicians to make decisions for them, it arguably is reversed since now presidents with a majority in the senate will want to propose the most partisan judge they can get through their own party and lower judges know this
So probably it'll get worse
The panel essentially relies on ordinary meaning analysis of "significant new use" to decide that this (the company fluorinating its products) can't be a significant new use because it has been in business for 40+ years and that surely is not "new." The court goes that route because it says "significant new use" is not defined in the statute, 15 U.S.C. § 2604 [0]. Let's open our hymnals just to make sure that's true.
§ 2604(a)(1)(A)(i) is a prohibition on manufacturing a "new chemical substance" unless certain procedures are followed allowing the EPA to make a determination about it. Ok, this is definitely not a case about a new chemical substance. The statute talks about "significant new use" in the next subparagraph, § 2604(a)(1)(A)(ii): no person may "manufacture or process any chemical substance for a use which the Administrator has determined, in accordance with paragraph (2), is a significant new use."
Reread that subparagraph. It is up to the EPA Administrator to determine whether "a use" is a "significant new use." Well, how is s/he supposed to do that? "[I]n accordance with paragraph (2)," i.e., by following 15 U.S.C. § 2604(a)(2). In other words, whether some "use" is a "significant new use" is determined within the statutory boundaries erected in 2604(a)(2). "Significant new use" just means "a use meeting criteria listed under 2604(a)(2)." There is no other meaning for the term. It's a statutory term of art. You could call it a BongoBoomBah. If the Administrator determines that manufacturing or processing a chemical for a use is a BongoBoomBah, then no person may manufacture or process that chemical for that use. How does the Administrator decide a use is a BongoBoomBah? Look at 2604(a)(2): the Administrator promulgates a rule "after a consideration of all relevant factors, including" four specifically identified factors. If the Administrator promulgates a rule that the use is a BongoBoomBah after following the statutory guidelines, the use just is a BongoBoomBah, end of story.
But the 5th Circuit doesn't bother with any of that. They look at the definitions section, see "significant new use" isn't specifically defined, then throw up their hands and say, well, new means new, so if it's not a new use, it can't be a significant new use, ergo case dismissed. No parsing of the actual statutory text or structure. It's gotcha jurisprudence.
But it's the 5th Circuit, so... par for the course.
[0] https://www.law.cornell.edu/uscode/text/15/2604
If a reasonable person can't read the law and determine how not to be a BongoBoomBah then...
You haven’t spent much time reviewing actual laws in the US if you think the common person should be able to easily decipher the meaning. They are generally incredibly difficult to decipher if you’re trying to read them based strictly on your understanding of the layman definition of a word.
You almost always have to read the full thing to get context and even then will have to cross reference multiple times to figure out the legal definition of the language in use. It frequently deviates from how those words are used in common speech.
I still don't understand how an existing use can be redefined as a "significant new use" based solely on the discretion of the EPA Administrator. They were presumably making buckets using a specific method before it was determined that it may have health consequences and is therefore a "significant new use" based on this knowledge instead of, say, they created a novel method to make buckets.
Maybe tomorrow they discover pulping paper with water harms sea turtles therefore pulping paper with water is a significant new use of trees.
As for the rest, I think what's tripping everyone up is that "use" isn't just any old use out in the world. The Code of Federal Regulations defines in great and painful detail what kinds of uses are subject to regulation: see 40 CFR Part 721, subpart B (https://www.law.cornell.edu/cfr/text/40/part-721/subpart-B).
Manufacturers have to submit a notice of the uses they are putting the chemicals to. That gets reviewed by EPA. If EPA approves, that use (or the corresponding part in 40 CFR 720) is added to the chemical's listing in subpart E (see https://www.law.cornell.edu/cfr/text/40/part-721/subpart-E). But if EPA finds out that a chemical is being used in practice in a way that matches subpart B, but isn't listed in subpart E because no one sent the required notifications, they can take various actions to force compliance (under various penalties). When the manufacturer complies and submits the appropriate notifications, the use gets added to the chemical listing in subpart E.
Were the drafters incompetent? Is it some kind of con where they deliberately pass a law that appears to say one thing but actually says something else?
Honestly, as a non-American this seems bizarre.
So would better cities, better biking infrastructure, etc etc.
Our inability to regulate toxic materials entering our bodies is going to be the downfall of this country.