September 24, 2021

Volume XI, Number 267

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Yes, Patchwork Makes for Great Quilts but Not for Environmental Regulation and PFAS Are No Exception

This morning, Inside EPA reports on the challenges the regulated community faces because the Federal Government is considerably behind several states in the race to regulate any number of the hundreds if not thousands of "forever chemicals" known generically PFAS.

The former EPA official quoted is absolutely correct that generally speaking, the regulated community prefers one standard to many standards.  Who wouldn't?  But, when it comes to PFAS, more than a dozen states have already acted and those who might hope that Congress will preempt what those states have already decided in favor of Federal answers to the same questions certainly don't have history on their side.

We know that nearly all Federal environmental requirements are floors, not ceilings, with the States free to impose more stringent requirements.  PFAS are unlikely to be an exception to this rule.  That doesn't mean the Federal government should throw up its hands.  States may choose to defer to the Federal Government's judgments on PFAS, especially if the Federal Government has science on its side.

“[N]othing is worse for industry than a patchwork of states having different requirements, where at the end of the day, it does not help interstate commerce -- where California has certain restrictions, Colorado has a different one. And then Maine has something completely different. At some point, you can't make a product that's going to be applicable,” he says.

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 210
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About this Author

Jeffrey R. Porter, Environmental Attorney, Mintz Levin, Risk Analysis Lawyer
Member

Jeff leads the firm’s Environmental Law Practice. He is also a member of the firm’s Policy Committee. For 23 years, he has advised clients regarding complex environmental regulatory compliance and permitting issues, including issues relating to air and water discharges and hazardous waste storage and disposal. In 2011 and 2012, the firm received the Acquisition International Legal Award for “US Environmental Law Firm of the Year.” The awards celebrate excellence and reward firms, teams and individuals for their contribution to client service, innovation and commitment to quality.

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617-348-1711
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