January 30, 2023 | 1 minute read

Before cheering the DC Circuit's dismissal of the American Chemistry Council's PFAS lawsuit, let's recognize its effect on all NGOs

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Jeff Porter

Member/ Chair, Environmental Law Practice

Get in touch

Jeff Porter

Member/ Chair, Environmental Law Practice

Three Judges of the DC Circuit Court of Appeals have dismissed the American Chemistry Council's complaint challenging EPA's interim health advisory levels for PFAS in drinking water. The ACC's case was dismissed, not for perceived lack of merit, but because the Judges found that the ACC didn't have "associational standing" to bring the lawsuit in the first place.

This decision is only the most recent of several in Federal Courts ranging from the Supreme Court of the United States to Appeals Courts to District Courts more rigorously applying the constitutional requirement that a litigant allege either that a challenged action affects all of its members or that one or more specific members of the organization would have standing to challenge the action.

The courts might be less likely to be doing this if the Department of Justice wasn't pushing them to do so.

Many will applaud the Court of Appeals for ending what they see as vexatious litigation against EPA which is working hard, and taking longer than hoped, to implement its PFAS road map.

But the fact is that the Judiciary's recent more rigorous enforcement of the standing requirement will require the attention of all organizations seeking to challenge any action of the Government.

“Petitioner has failed to carry its burden of establishing standing,” the court says in its brief Jan. 23 per curiam order in American Chemistry Council (ACC) v. EPA. “Despite relying on associational standing, petitioner has neither alleged that the challenged conduct affects all of its members nor identified any specific member who would have standing to pursue this action.” The order continues, “Although petitioner has pointed to alleged harm facing an indirect subsidiary of one of its members, it has not shown that the member itself is suffering any injury or would have standing to sue based on the subsidiary’s alleged injury. . . . Nor has petitioner demonstrated a ‘substantial probability’ that the agency actions challenged here caused the litigation costs that some of its members allegedly face in having to defend against a separate lawsuit.”