Environmental Science & Engineering - www.esemag.com - September 2003
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US Court upholds federal arsenic-in-tap-water rule against state and industry lawsuit
In the face of a vigorous challenge
from the State of Nebraska and
several water systems represented
by a conservative advocacy group,
a panel of the US Court of Appeals for
the D.C. Circuit unanimously upheld
the US Environmental Protection
Agency’s controversial 2001 arsenic in
drinking water rule, and ruled that the
US Safe Drinking Water Act is constitutional.
Erik Olson, a senior attorney with
NRDC (Natural Resources Defense
Council) argued the case before the
court for NRDC, which had intervened
on behalf of EPA to defend the law and
the arsenic rule. This was the third
time Nebraska politicians have unsuccessfully
challenged the constitutionality
of the Safe Drinking Water Act in
court. “State officials, siding with
industry, keep insisting that it’s okay
for the people of Nebraska to drink
water containing more arsenic than in
the rest of the country,” Olson added.
“It’s three strikes, and they’re out.”
Nebraska Attorney General, Jon
Bruning, argued the case personally
for the state, the industry-funded
Competitive Enterprise Institute (CEI),
and a few water utilities. The court
rejected CEI and Nebraska’s contentions
that the arsenic rule and Safe
Drinking Water Act are unconstitutional.
The court held that Congress has
the power under the Commerce Clause
of the US Constitution to regulate poisonous
chemicals like arsenic in water
systems that sell water across state
lines. Thus, the court rejected
Nebraska’s “facial” challenge to the
constitutionality of the Safe Drinking
Water Act.
In addition, the court ruled that the
Safe Drinking Water Act is consistent
with the Constitution’s 10th Amendment,
which restricts federal government
regulation of states, because the
law does not compel states to regulate
arsenic in tap water (they may cede
that authority to the federal EPA).
The arsenic rule has a long and
controversial history. A 50 parts per
billion (ppb) arsenic standard was
first adopted by the US Public Health
Service (USPHS) in 1942. Although
USPHS recommended that the standard
be dropped to 10 ppb in 1962, it
was not until Congress ordered EPA
three separate times to update the
rule, and after NRDC sued EPA in
2000, that the agency proposed the
standard. The Clinton administration
finalized it at 10 ppb in January,
2001. A furor erupted after the Bush
administration suspended the rule in
March, 2001. After public outcry, an
NRDC lawsuit, and a National
Academy of Sciences report (issued
in September, 2001) finding that EPA
had substantially underestimated
arsenic’s cancer risks, the Bush
administration reversed course and
allowed the new 10 ppb standard to
stand.
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