The U.S. Court of Appeals in Philadelphia has upheld a U.S. Environmental Protection Agency health advisory for GenX, one of thousands of “forever” chemicals known as PFAS—rejecting a claim by chemical manufacturer Chemours that the agency lacks legal jurisdiction because the warning "is not a final agency action.”   

EPA finalized drinking water limits for six types of PFAS chemicals, including GenX, in April. But it had previously released the advisory in 2022 as a public document to note the harms of exposure to that class of chemicals above certain amounts. 

A coalition of community, public health and environmental justice groups had intervened in the case on behalf of EPA. While they cheered the July ruling that did not halt the advisory, a separate case challenging the legality of the final drinking water limits is expected to be heard by the appellate court in Washington, D.C., later this year. 

Some believe the challenge filed by Chemours, other manufacturers and water supply trade groups is a bid to petition the U.S. Supreme Court to consider the case in light of the Loper Bright decision that overturned court deference to federal agency opinion when legislative language underpinning a regulation is ambiguous.  

Chemours is a former unit of the DuPont de Nemours Inc. global chemicals company that was spun off in 2015.

Although legal briefs for that case have not yet been filed, John Gardella, an attorney at Boston-based CMBG3 Law—who has litigated PFAS cases—says the challengers will likely raise the issue of the science used to determine the cost-benefit analysis for the PFAS in drinking water limit. The American Water Works Association and the Association of Metropolitan Water Agencies released a report in 2023 based on research conducted by consultant Black & Veatch that estimates the cost to comply with the drinking water standard to be nearly three times higher than the $1.5 billion-per-year figure cited by EPA.

Erik Olson, senior strategic director for health at the Natural Resources Defense Council (NRDC),  part of the coalition of groups intervening in both appeals court cases, says the water groups' analyses is "not credible and should be dismissed." He said: "Given how great the risks of cancer and other health problems are from PFAS chemicals, the costs of compliance are entirely reasonable. EPA did a conservative analysis of the costs and benefits. In fact, EPA chose not to quantify or monetize benefits that are, in fact, enormous."

No matter how the Washington, D.C., court ultimately rules, “I have no doubt [the legality of the drinking water standard] will be attempted to be brought up to the Supreme Court level at some point,” Gardella said in an interview.  

Since 2017, Chemours has been under a consent order with the North Carolina Dept. of Environmental Quality to reduce PFAS leaking into air, water and soil. The company uses Hexafluoropropylene Oxide Dimer Acid and its ammonium salt—collectively called GenX—to manufacture polymers at its Fayetteville, N.C., facility near the Cape Fear River. Trace amounts of the chemical have been detected in surface water, groundwater, rainwater and drinking water, and EPA has identified manufacturers as a potential source. 

"Chemours fought this health advisory level for the same motivation behind all their actions: money," said Dana Sargent, executive director of Cape Fear River Watch, a group working on behalf of citizens affected by water pollution from the Chemours plant, in a statement. "We are grateful [judges] rejected Chemours' nefarious claim." 

Chemours contends that the Philadelphia court ruling was based on merely procedural grounds. In a statement, the company said: “We look forward to having the D.C. Circuit consider the merits of our arguments in connection with our pending challenge to the [regulation]” that the firm adds uses “the same scientifically unsound analysis.”  

The Philadelphia court decision means that EPA can continue "to serve the important role of informing the public about potential risks to health from unregulated chemicals in drinking water," says Sarah Tallman, a senior attorney at NRDC.