Court of appeals supports motion to intervene in EPA and Chemours legislation

WILMINGTON, N.C. (WECT) - The U.S. Court of Appeals for the Third Circuit has granted a motion to intervene made by several groups in the ongoing legislation between Chemours and the Environmental Protection Agency. In effect, the court is signaling that the groups have an interest in the litigation, and that their interest may not be represented enough by the EPA.

The EPA issued drinking water health advisories last year for several Per- and Polyfluoroalkyl Substances (PFAS) under the Safe Drinking Water Act in June 2022. The advisories indicate the maximum level of PFAS that can be in the water with no negative effects expected. These and other health advisories are not regulatory or enforceable, but they do provide technical information for officials to create plans, solutions and policies regarding PFAS in the water.

Per the EPA, PFAS are manufacturing chemicals used in various products since the 1940s that have been found to break down slowly, allowing PFAS to accumulate on people, animals and in the environment. GenX refers to certain types of PFAS.

Chemours filed a legal challenge of the GenX advisory, and the groups filed a motion to intervene in that challenge on behalf of the respondents (in this case, the EPA and the EPA Administrator) in August 2022.

The groups and people taking part in the motion, also known as the movants, are the Cape Fear River Watch, Center for Environmental Health, Clean Cape Fear, Democracy Green, Natural Resources Defense Council, North Carolina Black Alliance, Toxic Free North Carolina, Dr. Kyle Horton, Lacey Brown, Harper Peterson, Michael Waters and Debra Stewart.

The movants argue in the motion to intervene that they have an interest in preserving the GenX health advisory, that they could be affected by the result of the case and that their interests aren’t adequately represented by the EPA.

“Movants should be granted intervention to protect their interests throughout the course of this litigation, even if EPA’s policy on GenX chemicals changes,” states the motion.

According to the order from the court of appeals, the motion was made, and the petitioner (Chemours) and the respondents (EPA) both responded in opposition to the motion to intervene. However, Circuit Judge Arianna J. Freeman replied in support of the motion.

“Movants have met their burden to show “a sufficient interest in the litigation,” “a threat that the interest will be impaired or affected, as a practical matter, by the disposition of the action,” and “that [their] interest [may] not [be] adequately represented by the existing parties to the litigation,” states the order.

You can read the court of appeals decision, the briefing and scheduling order and the original motion to intervene from August 2022 below.

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