Tom Neltner, J.D., is Chemicals Policy Director
March 17, 2018 update: The court ordered EPA’s rule vacated as of June 1, 2018 based on an agreement by the parties. This rule would have delayed the compliance deadline for the formaldehyde from composite wood products rule from 12/12/17 by one year. The parties agreed that until March 22, 2019, products certified as compliant by the California Air Resources Board is sufficient to comply with EPA’s rule. EPA has updated its webpage to provide details. The parties reserved their right to appeal the order.
On February 16, the Trump Administration’s Environmental Protection Agency (EPA) suffered another defeat in the courts.
In the latest case, the United States District Court for Northern California found that EPA violated the law when it gave industry a one-year delay to comply with formaldehyde emission standard for composite wood products. The standard was supposed to go into effect on December 12, 2017, one year after it was published in the Federal Register. Administrator Pruitt originally proposed a three month delay because, with the change in Administration, the agency failed to make a certification program essential to industry compliance operational, as originally planned. On September 25, 2017, the agency issued a final rule that gave a one-year extension instead, concluding that the delay “provides a balanced and reasoned timeline for importers, distributors, and regulated entities to establish compliant supply chain and comply with the [rule].” It also extended other deadlines in the rule.
The litigation is part of a long process that started in March 2008 when more than 5,000 organizations and individuals representing every state in the country, led by Sierra Club, submitted a TSCA citizen’s petition to EPA. The Sierra Club was driven by its findings of extensive exposure to formaldehyde among Gulf Coast residents forced to live in FEMA trailers made with pressed wood products after Hurricanes Katrina and Rita.
The 2008 petition asked EPA to issue a TSCA Section 6 rule to protect people from formaldehyde emitted from pressed wood products commonly used in flooring, furniture, and cabinets. It called for EPA to extend a standard adopted by the California Air Resources Board (CARB) in April 2007 in order to protect all Americans from this carcinogen that also causes and exacerbates respiratory ailments.
When EPA was effectively unable to act due to limitations under TSCA (which was finally revised in 2016), Sierra Club and the Composite Panel Association, the trade association for the North American producers of the product, went to Congress for a fix. Under the leadership of Senators Klobuchar and Crapo and Representative Matsui, Congress passed the Formaldehyde Standards in Composite Wood Products Act in 2010 (Formaldehyde Act), which directed EPA to promulgate a rule based on the CARB standard. EPA badly missed the deadlines laid out in the law, finally signing the regulation on July 31, 2016 and publishing it in the December 12, 2016 Federal Register.
After being patient with delay after delay, Sierra Club and New Orleans-based A Community Voice decided that Pruitt’s one-year delay was the last straw. With Earthjustice as their attorney, they filed a lawsuit on October 31, 2017 asking the court to vacate the rule imposing the one-year delay. In a tortured reading of the law, EPA and the Department of Justice argued that the one-year delay was consistent with the law and also said that the plaintiffs had waived their rights by not properly raising the concerns with the delay during the comment period.
On February 16, Judge Jeffrey White ruled on dueling motions for summary judgment in favor of the plaintiffs. He found “the Delay Rule is beyond the scope of the EPA’s authority and is not in accordance with the Formaldehyde Act,” which required the formaldehyde limits. He said:
It is clear from the legislative history of the statute that Congress was foremost concerned with the expeditious implementation of emission standards designed to protect both the health of vulnerable populations affected by the use of composite wood products as well as domestic manufacturers who were, in large part, compelled to abide by California emissions levels and not able to compete fairly with imported goods that had not been subject to the same manufacturing standards.
Since the judge ruled after the original December 12, 2017 compliance deadline, he decided to stay his order vacating the rule until March 9, 2018 to give the plaintiffs and EPA an opportunity to agree on a path forward.
The court decision provides one more setback to this Administration’s efforts to roll back regulations designed to protect public health. The Lumber Liquidators debacle in 2015 made clear the country needs an enforceable rule, especially for imported composite wood products. EPA and the plaintiffs need to quickly reach an agreement that makes the best of the confusion created by the agency’s delay.