Herb Estreicher Quoted in Inside TSCA Article on Applicability of the ‘Major Questions’ to TSCA Section 6 Ban Rules

Keller and Heckman Partner Herb Estreicher was quoted in the Inside TSCA article, “Industry Attorney Doubts ‘Major Questions’ Applications Under TSCA.” The article mentions Keller and Heckman’s August 10, 2022 TSCA 30/30 Webinar, where Herb discusses his doubts that the U.S. Environmental Protection Agency’s (EPA) proposed ban of asbestos under Section 6 of the Toxic Substances Control Act (TSCA) can be overturned using the recent Supreme Court precedent that narrowed EPA’s power under the “major questions doctrine.” Herb states, “It’s hard to make the case that the proposed asbestos ban is a ‘major question’ -- that the EPA acted outside the granted authority.” Herb refers to comments filed by twelve State attorney generals (AGs) on the proposed asbestos ban. The AGs’ comments cited the Supreme Court ruling in West Virginia v. EPA, in which a 6-3 majority used the “major questions doctrine” to diminish EPA’s powers. Although noting that the AG’s comments made good points about EPA’s failure to properly assess risk and benefits or impact of the proposed ban on the national economy, Herb pointed out that TSCA gives EPA express authority to ban chemicals even if the ban would significantly disrupt the national economy, national security, or critical infrastructure. However, in such cases, EPA has discretionary authority to grant a time-limited exemption. Herb does see a role for the major questions doctrine in helping EPA fend off overbroad Section 21 petitions from NGOs.

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