David Fischer Quoted in Inside TSCA Article on EPA’s TSCA Litigation Approach

Keller and Heckman Counsel David Fischer was quoted in the Inside TSCA article, “Attorneys Question EPA’s TSCA Litigation Approach As Arguments Loom.” The article notes the concern and frustration expressed by many regarding the U.S. Environmental Protection Agency’s (EPA) approach to pending litigation over the Biden-era Toxic Substances Control Act (TSCA) framework rule.

David questioned why the Trump EPA did not move faster to remand the multiple TSCA rules challenged before several federal appellate courts. “It would have made sense to immediately ask for remand, to bring everything back in -- don’t get jammed into the court deadlines, which is exactly where EPA is right now,” said David. “This feels so incredibly unsettled. It’s a strange place we find ourselves. I think it’s unprecedented.”

He suggested that the administration’s failure to appoint or confirm appointees to key slots might be a key factor. “Maybe this is the problem with not having . . . general counsel confirmed yet. Decisions [need to be] made pretty timely and the confirmation timeline is not keeping up with [the courts’] timeline,” he added.

David and other sources are also looking to the Supreme Court’s 2024 ruling in Loper Bright Enterprises v. Raimondo, which may also play a role in further complicating the TSCA case before the D.C. Circuit.

David called the situation “completely uncharted territory because of Loper. One would think the agency would get one crack at interpretation. How does that work if EPA is forced to defend a position that they want to change in a subsequent rule that would have a different definition or interpretation of a statute?”

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