A federal appeals court on Friday vacated an order from the U.S. Environmental Protection Agency (EPA) that required seven chemical manufacturers and processors to perform new tests to determine whether a petrochemical solvent is toxic to birds. The U.S. Court of Appeals for the District of Columbia Circuit, with a three-judge panel, sided with the industry trade group Vinyl Institute, ruling that the EPA had failed to provide substantial evidence for the necessity of the new tests.
This case marked the first time the D.C. Circuit addressed the circumstances under which it should set aside a test order issued by the EPA pursuant to the 2016 amendments to the Toxic Substances Control Act. These amendments granted the EPA authority to require new testing instead of relying solely on existing data to determine toxicity. The law mandates that an order requiring new testing must be supported by “substantial evidence in the record taken as a whole.”
However, the court noted that the record does not include non-public information. U.S. Circuit Judge Karen LeCraft Henderson, writing for the panel, criticized the EPA for relying in court on data and studies it provided to the Vinyl Institute only after the group sued to justify the order. Henderson stated that such non-public information was not part of the record and that the EPA had “failed to provide substantial evidence of how the reasonably available information informed the decision to require new avian testing.”
The court remanded the matter back to the EPA, instructing it to satisfy its burden to provide support for the tests. In a statement, the EPA announced that it was evaluating the decision. Ned Monroe, the president and CEO of the Vinyl Institute, praised the court’s decision, stating it would “stop these unnecessary tests on Bobwhite quail birds and extinguish this requirement.” Monroe expressed hope that the EPA would engage with manufacturers early in their processes to ensure the collection of appropriate and accurate data moving forward.
In March 2022, the EPA used its authority under the 2016 amendments to direct Formosa Plastics, Westlake, Occidental, and other Vinyl Institute members to test the chronic toxicity of 1,1,2-trichloroethane. This chemical is used in plastics and petrochemical manufacturing, and EPA reporting data indicates that more than 100 million pounds of the chemical were produced or imported into the U.S. in most years between 1986 and 2015. The EPA, in ordering the tests, claimed it lacked data on the chemical’s toxicity to earthworms and birds and that available information would not close that data gap.
The Vinyl Institute sued in 2022 to challenge the bird testing requirement, arguing that the EPA had failed to explain why existing data was insufficient before ordering the time-consuming, expensive tests. Samantha Liskow, a lawyer with the Environmental Defense Fund who filed a friend-of-the-court brief supporting the EPA’s order, emphasized in an email that the D.C. Circuit’s ruling did not question the sufficiency of the EPA’s analysis or the need for testing. Liskow noted that the EPA simply needed to add to the public record information it already had and expressed confidence that a future challenge by the industry to this well-supported test order would be denied.
