The US air force is refusing to comply with an order to clean drinking water it polluted in Tucson, Arizona, claiming federal regulators lack authority after the conservative-dominated US supreme court overturned the “Chevron doctrine”. Air force bases contaminated the water with toxic PFAS “forever chemicals” and other dangerous compounds.
Though former US Environmental Protection Agency (EPA) officials and legal experts who reviewed the air force’s claim say the Chevron doctrine ruling probably would not apply to the order, the military’s claim that it would represents an early indication of how polluters will wield the controversial court decision to evade responsibility.
It appears the air force is essentially attempting to expand the scope of the court’s ruling to thwart regulatory orders not covered by the decision, said Deborah Ann Sivas, director of the Stanford University Environmental Law Clinic.
“It’s very odd,” she added. “It feels almost like an intimidation tactic, but it will be interesting to see if others take this approach and it bleeds over.”
The supreme court in late June overturned the 40-year-old Chevron doctrine, one of its most important precedents. The decision sharply cut regulators’ power by giving judges the final say in interpreting ambiguous areas of the law during rule-making. Judges previously gave deference to regulatory agency experts on such questions.
The ruling is expected to have a profound impact on the EPA’s ability to protect the public from pollution, and the Tucson dispute highlights the high stakes in such scenarios – clean drinking water and the health of hundreds of thousands of people hangs in the balance.
Several air force bases are largely responsible for trichloroethylene (TCE) – volatile organic compounds – and PFAS contaminating drinking water sources in Tucson. A 10-sq-mile (26 sq km) area around the facilities and Tucson international airport were in the 1980s designated as a Superfund site, an action reserved for the nation’s most polluted areas.
The EPA in late May issued an emergency order under the Safe Drinking Water Act requiring the air force to develop a plan within 60 days to address PFAS contamination in the drinking water.
Filtration systems put in place in 2014 for TCE and other chemicals are currently removing PFAS, but the systems were not designed to remove PFAS, and the added burden is straining the system.
Officials previously shut down a well in 2021 when contaminated water nearly broke through the system, the EPA wrote. Such a breach could leave the Arizona city without safe water.
The EPA order requires the development of a system specifically designed for PFAS. A similar system is estimated to cost about $25m to develop, or about 0.1% of the air force’s annual budget.
In a formal response sent to the EPA in the weeks after the supreme court reversed Chevron, the air force claimed the EPA lacked the authority to make the order, citing the case as evidence and stating “the EPA’s order can not withstand review”.
But legal experts noted that Chevron does not affect EPA enforcement actions like the Tucson order – it only affects the rule-making process.
Moreover, one arm of the administration cannot sue another, so the military cannot sue the EPA, and the case would never end up in court where the Chevron decision would come into play, said Walter Mugdan, a former EPA Superfund director. Instead, it would be resolved internally by a presidential administration instead of the judiciary.
However, a business that finds itself in a similar position may try to sue the EPA, Sivas said.
The air force did not respond to specific questions about its Chevron claim, but said it “will continue to meet our obligations under the federal [Superfund] law”.
The crux of the rest of the air force’s refusal to comply with the order hangs on whether there is “imminent and substantial danger” to Tucson residents. The air force noted Tucson’s drinking water was currently below the federal limit for PFAS.
But the EPA noted the filtration system was straining because it was not designed for PFAS, and the plume was especially dangerous because there are limited alternative drinking water sources in the desert. The real possibility that the system breaks and leaves people exposed or without clean water constitutes “imminent and substantial” danger, the EPA wrote in its response.
“The law does not require or expect EPA to wait until people are actively being harmed,” the EPA added. “In fact, Congress expects EPA to utilize its authority to prevent the harm from materializing.”
The air force also claimed it should not be forced to address the problem because the city of Tucson and state of Arizona are funding a different system to address PFAS. In response, the EPA said the new system would not be ready for years, and the air force is financially responsible for the pollution.
“The Air Force bears responsibility for the PFAS contamination and needs to step forward to protect the Tucson community,” the EPA wrote.
