Air Force Says Supreme Court Gave It Right to Poison Drinking Water
The U.S. Air Force is claiming that it cannot depollute drinking water that it contaminated with dangerous forever chemicals because the U.S. Supreme Court has stripped federal regulators of the authority to make it clean it up.
In June, the Supreme Court overturned the Chevron deference, a 40-year-old doctrine that required judges to defer to a federal agency when determining the meaning of any ambiguous laws that agency should try to enforce. The Air Force has claimed that without the Chevron deference, the Environmental Protection Agency cannot order it to address its own pollution, The Guardian reported Monday.
In Tucson, Arizona, several Air Force bases have been polluting the drinking water, contaminating it with trichloroethylene, a volatile organic compound produced in industrial work, and PFAS, or “forever chemicals,” which do not naturally break down. These chemicals can accumulate inside the human body and have been linked to a myriad of severe health problems.
In May, the Environmental Protection Agency ordered the Air Force and National Guard to develop a plan to address the pollution, which would cost them an estimated $25 million—just 0.1 percent of the Air Force’s budget. The Air Force refused, stating that “the EPA’s order can not withstand review” and therefore it wouldn’t be beholden to it, according to The Guardian.
The Supreme Court overturned Chevron deference in the ruling for Loper Bright Enterprises v. Raimondo, leading many to fear that agencies such as the EPA would be stripped of their regulatory power. The court’s decision allows the federal judiciary to take on the role of scientists and policymakers, instead of administrative agencies that are staffed by experts on the issue at hand.
Former EPA officials and legal experts told The Guardian that the ruling would likely not apply in this case, because the new precedent only affects rule-making, not enforcement. To challenge the EPA’s regulatory order, the Air Force would need to sue the EPA, which it legally can’t do because one branch of government cannot sue another. A business, however, could challenge the order.
Deborah Ann Sivas, director of the Stanford University Environmental Law Clinic, told The Guardian that the Air Force seemed to be testing just how far it could push the new precedent, which has severely kneecapped regulators.
“It feels almost like an intimidation tactic, but it will be interesting to see if others take this approach and it bleeds over,” Sivas said.
Last year, a report from the Department of Defense found that at least 245 U.S. military bases had contaminated or threatened to contaminate nearby drinking water with PFAS. The Department of Defense is one of the biggest contributors to PFAS pollution in the country.
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