Will the SCOTUS Chevron Decision Affect the EPA’s Recent Asbestos Ban?

Asbestos, a naturally occurring mineral, was once hailed for its unmatched durability and heat-resistant properties. Its use dates back thousands of years, with ancient civilizations like the Greeks and Romans recognizing these unique properties. However, it wasn’t until the Industrial Revolution of the 20th century that asbestos use truly expanded along with industry, becoming a staple in construction, manufacturing, textiles, shipbuilding, automotives, and more, as well as in various household products.

Public safety left in doubt after conservative Justices’ ruling

In recent decades, the dark side of asbestos has come to light. Despite its undeniable usability, the mineral is now known to be a harmful carcinogen, responsible for many different health issues related to exposure, including asbestos-related lung cancer, mesothelioma, asbestosis, pleural plagues, and so many others.

In response to mounting evidence over the dangers of asbestos exposure, the U.S. Environmental Protection Agency (EPA) has made concerted efforts over the years to regulate and limit its use. In the late 1980s, the EPA introduced a series of measures which aimed to phase out asbestos entirely. However, the agency faced significant pushback from industries that profited greatly from its use, leading to a partial, rather than a full, ban.

Today, as EPA continues to attempt to impose strict regulations, recent developments in the judicial landscape, particularly the result of a Supreme Court ruling, could effectively curtail these efforts.

Asbestos in the Industrial Age

The Industrial Revolution was a period of rapid economic growth in the U.S. As industries boomed and infrastructure expanded, this led to identifying new ways to incorporate asbestos into everyday life, accelerating its demand. Industries like manufacturing, construction, shipbuilding, automotives, and textiles flourished, and the mineral quickly became a go-to resource for anything requiring fireproofing features and longevity.

Nearly every 20th Century building constructed until the mid-1980s contained asbestos (many still do).

Construction, in particular, relied on asbestos to create a variety of products to be used in commercial and residential structures. Asbestos soon appeared in glues, plaster, and other adhesives, insulation, flooring and ceiling tiles, roofing shingles, cement sheets, pipe insulation, wallboard, textured paints and coatings, gaskets and joint compounds, siding, and caulk, among other materials.

Household products like oven mitts, potholders, stove-top pads, ironing board covers, hair dryers, crock pots, toasters, popcorn poppers, portable heaters, fireproof and electric blankets, artificial fireplace logs, makeup, gloves, and arts and craft supplies also contained asbestos.

Before anyone could blink, all of society was surrounded by asbestos, both at home and in the workplace. It became next to impossible to separate from it. Many people didn’t realize it was harmful at the time, however, so they didn’t think twice about this. It wasn’t until numerous cases of respiratory illnesses, cancers, and other diseases began to surface – especially in industries where asbestos was in its prime – that regulators began to wonder if dangers lurked behind the mineral’s innocent façade.

The EPA’s Regulatory Efforts and Challenges Faced

By the time the late 1980s had rolled around, it was largely public knowledge the asbestos exposure could lead to health complications, many of which were life-threatening. The uptick in cases led to substantial research around this issue, and the resulting findings were undeniable. Even amid pushback from the asbestos industry to replace the mineral with alternatives and its efforts to keep the dangers hidden, the harmful effects of exposure could no longer be kept behind closed doors.

The Asbestos Ban and Phase-Out Rule put into place by the EPA in 1989 aimed to prohibit the manufacturing, importation, processing, and distribution of asbestos-containing materials (ACMs) altogether. However, as ambitious as this was, the measure faced so much opposition from asbestos-reliant industries, it was eventually partially overturned by the Fifth Circuit Court of Appeals two years later.

Federal Agency oversight of public safety removed by the Supreme Court against a strong dissent

The implications of this ruling remain profound. Had asbestos been phased out entirely more than three decades ago, there’s a good chance this would have far-reaching effects – positive ones. However, the decision allowed for its continued use, meaning not only would the legacy of an asbestos-ladened past linger in the walls of aging infrastructure, but more could be introduced at any time.

Unsatisfied with the partial ban, the EPA has continued its attempts to strengthen asbestos regulations throughout the years. The Toxic Substances Control Act (TSCA) of 1976 provided the agency with the ability to look for, report, and test for a wide variety of harmful substances in the environment, including asbestos. The agency has relied on this as a fallback to ensure asbestos use is being closely monitored.

More recently, the EPA has leaned on the Significant New Use Rule (SNUR), part of the TSCA, which requires manufacturers, processors, and importers to obtain the agency’s approval before beginning or resuming new uses of asbestos. Under this rule, relevant parties must notify the agency at least 90 days in advance, allowing it to assess potential harm and take action to limit or deny their proposals on a case-by-case basis.

The Chevron Doctrine and Its Impact

The Chevron doctrine, established by the Supreme Court in 1984 as a result of the case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., made it necessary for courts to defer to federal agencies’ interpretations of any ambiguous laws put into place by these agencies, as long as the interpretations were reasonable. Basically, what this meant was, if a law is deemed unclear, the agency responsible for enforcing it has the authority to interpret its meaning, and courts will generally uphold this interpretation.

In the case responsible for bringing this doctrine to life, there was a dispute over how to interpret the Clean Air Act, specifically as it related to pollution being defined by the EPA as a “stationary source.” The court ruled that’s the EPA’s interpretation be upheld. The Chevron doctrine has long played a vital role in allowing agencies to implement and enforce rules effectively without debate over specific regulatory language included in these rules.

Overturned by the Supreme Court: A Decision with Long-term Implications for Industry and the Environment

On June 28, 2024, in a 6-3 landmark decision, the Supreme Court overturned the long-standing Chevron doctrine. This decision was delivered in the case Loper Bright Enterprises v. Raimondo. The plaintiff, Loper Bright Enterprises, challenged a National Marine Fisheries Service (NMFS) regulation requiring it to pay for observer services to monitor its fishing operations. Under the Chevron doctrine, a court would have traditionally followed the process of reviewing whether the NMFS’s interpretation of the law was reasonable. However, the high court instead decided that judges should now use their own independent judgment, even if this conflicts with an agency’s interpretation.

How the SCOTUS ruling can impact asbestos dangers

The move will no doubt have profound implications for the EPA’s ability to enforce asbestos regulations, or to achieve an all-out ban, if challenged by industry. Because the decision reverses the original purpose of this doctrine, the agency is left with no choice but to rely on individual courts to determine whether its restrictions are reasonable, or else side with the other parties. Not only does this mean it could now become easier for asbestos to continue wreaking havoc on the nation’s health, but the ruling might effectively wash away years-long efforts towards environmental improvements.

The Supreme Court’s 2024 ruling has rightfully raised concerns about the future of regulatory oversight and the balance between government authority and industry. It has left many environmental advocates questioning what will come next, and whether the judicial system is moving backwards rather than forwards towards a safer future.

What Now?

Asbestos continues to pose a considerable threat to public health – it has from the days it was staple in industry to now, still lingering in aging infrastructure. The EPA has made significant strides over the years to restrict its use, but these were always met with challenges. It seems the legal system has determined over and over again that industry interests should take precedence over protecting the public’s well-being.

The recent overturning of the Chevron doctrine represents another sizable hurdle for eliminating asbestos use. Parties are likely to take advantage of this ruling to dismantle the EPA’s efforts, but it remains difficult to determine what the future will hold.

For now, individuals who’ve worked in high-risk occupations, such as in construction and manufacturing, should schedule regular health screenings, monitoring for symptoms of asbestos-related health complications. With the mineral likely to meander in society for a long time to come, it may be impossible to separate from it altogether, but it’s important to at least safeguard against the effects of exposure.

For those who are already living with asbestos-related health conditions, these hazards have become very real. While there are legal and financial options available to offset the costs of medical bills, lost wages, travel, and other related expenses they never intended to incur, for the most part, the damage has already been done.

Hope must be kept alive that someday leaders and decision-makers across all sectors will come together and say, ‘Enough is enough.’ And efforts to eliminate asbestos use need to continue despite decisions like the recent Supreme Court ruling, which make maintaining hope more difficult.