Air Force cites Loper Bright in refusal of EPA order

What’s the story?

The U.S. Air Force announced in July it would not comply with an Environmental Protection Agency (EPA) order to clean polluted drinking water in Tucson, Arizona. The Air Force argued federal regulators did not have the authority to issue the order, citing Loper Bright Enterprises v. Raimondo—the June 2024 SCOTUS case overturning Chevron deference.

Stanford University Environmental Law Clinic Director Deborah Ann Sivas argued that since Chevron applied to rulemaking and not agency orders, the Air Force’s claim would expand the scope of Loper Bright beyond its original intent.

The background

The EPA ordered the Air Force—which the EPA argued contaminated drinking water in Tucson with per- and poly-fluoroalkyl substances (PFAS)—to develop a plan to clean the city’s water.

The emergency order was issued in May under the Safe Drinking Water Act and required the Air Force to create a plan within 60 days to clean the contaminated drinking water. The order directed the Air Force to develop a system for the specific purpose of removing PFAS from the water.

SCOTUS ruled in June in Loper Bright to overturn Chevron deference, holding that federal courts may not defer to an agency’s interpretation of an ambiguous statute. The Air Force contended that the Loper Bright decision applies to the EPA’s authority to issue an emergency order to regulate drinking water.