[co-author: Edward Mahaffey]
The Environmental Protection Agency’s new drinking water health advisories for PFAS, released on June 15, 2022, included an advisory level of 10 parts per trillion (ppt) for hexafluoropropylene oxide dimer acid and its ammonium salt, collectively known as GenX. On July 14, 2022, Chemours, which manufactures GenX, petitioned the United States Court of Appeals for the Third Circuit for review of the GenX health advisory. In its filing, Chemours argued that the health advisory was “arbitrary and capricious” by challenging EPA’s scientific assumptions, but Chemours also made a more radical argument: “The manner in which EPA has used its Safe Drinking Water Act authority to issue health advisories violates constitutional requirements, including the nondelegation doctrine, because EPA has utilized unfettered discretion to publish health advisories,” and had thus affected “the legal rights and obligations of companies, water utilities, and others across the country without sufficient legislative direction or regulatory safeguards.”
Chemours’ suit was probably in part a response to the North Carolina Department of Environmental Quality’s letter to Chemours requiring it to “revise its Drinking Water Compliance Plan and Feasibility Study Report and provide public water or whole building filtration systems to any party with a private drinking water well contaminated by GenX chemicals in exceedance of 10 ppt.” This demand was in accordance with a consent order agreed to between the North Carolina Department of Environmental Quality, Cape Fear River Watch, and Chemours in 2019, requiring that Chemours provide water to substitute for any “private drinking water well that has been found through testing validated by DEQ to be contaminated by concentrations of GenX compounds in exceedance of 140 ng/L, or any applicable health advisory, whichever is lower.”
The Legal Basis of Drinking Water Health Advisories
Under the Safe Drinking Water Act, EPA “may publish health advisories (which are not regulations) or take other appropriate actions for contaminants not subject to any national primary drinking water regulation.” According to EPA, “[h]ealth advisories serve as technical nformation to assist Federal, state and local officials, as well as managers of public or community water systems in protecting public health,” but “are not regulations and should not be construed as legally enforceable Federal standards.”
EPA’s procedure for issuing health advisories accordingly involves a “notice of availability” in the Federal Register when a new advisory is released rather than a formal notice-and-comment procedure.
The Nondelegation Doctrine and the Major Questions Doctrine
Some media coverage of Chemours’ lawsuit places its constitutional arguments in the context of the Supreme Court’s recent decision in EPA v. West Virginia. It is certainly plausible that the West Virginia decision, which used the major questions doctrine to strike down the Clean Power Plan, emboldened Chemours to make sweeping arguments against EPA’s authority, but it is important to note that the legal principles at issue in the two cases are quite distinct.
Under the major questions doctrine, in some “extraordinary cases” involving agency claims of regulatory authority over some kinds of significant issues, “something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to ‘clear congressional authorization’ for the power it claims.” The nondelegation doctrine, however, limits the power of Congress to delegate authority even explicitly: Congress must provide an “intelligible principle” to guide Executive Branch decision-making. The Supreme Court has acknowledged, however, “that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives,” and thus the Court deems delegations constitutional “if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.”
In practice, federal courts strike down legislation as a violation of the nondelegation doctrine extremely rarely, and the Supreme Court has not done so since 1935. As two scholars wrote in 2017, “Nondelegation doctrine cases follow a predictable pattern. Every few years, a court of appeals invokes the doctrine to strike down a federal statute. The Supreme Court inevitably grants certiorari and overturns the appellate decision, holding that the statute is a constitutional delegation of legislative authority.”
Advisories and Regulations
A plausible legal argument against EPA’s drinking water health advisories would probably need to show that the health advisories act as regulations in practice despite their theoretically advisory function. The major questions doctrine is clearly irrelevant to EPA’s power to establish genuinely advisory health advisories, because the statute grants EPA that power explicitly. Even under the nondelegation doctrine, however, the mere power to issue non-binding advisories could hardly be considered an essential legislative function.
While the new health advisory had a regulatory effect for Chemours, this happened only via the consent order. In its complaint, however, Chemours asserted that the health advisories have regulatory effects more broadly: “EPA health advisories are in fact regulatory in nature because they have significant legal consequences in numerous contexts including use by EPA and mandatory adoption in over 20 states.” This line of argument will face serious obstacles. In the states where EPA health advisories are mandatory, they are mandatory only due to state law, and EPA will most likely argue that it uses health advisories only as a tool for its internal decision-making, rather than enforcing them as standards.
Perhaps the biggest obstacle to Chemours’ argument, however, is the Supreme Court’s reluctance to strike down laws under the nondelegation doctrine. Even given the Court’s recent willingness to limit agency decision-making in general signaled by West Virginia, the claim that EPA’s authority to issue health advisories violates the nondelegation doctrine faces an uphill battle.
 Petition at 1-2, available at https://www.law360.com/articles/1511838/attachments/0.
 https://deq.nc.gov/media/12453/download; https://deq.nc.gov/media/30218/download?attachment.
 42 USC § 300g–1(b)(1)(F).
 87 Fed. Reg. 36849.
 West Virginia v. EPA, slip op. at 19 (June 30, 2022), quoting Utility Air Regulatory Group v. EPA, 573 U.S. 304, 324 (2014).
 J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).
 Mistretta v. United States, 488 U.S. 361, 372-73 (1989).
 https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=9565&context=penn_law_review, 380
 Complaint at 11.