Court Skeptical of Nebraska-Industry Suit Against Arsenic-in-Tap-Water Rule and Safe Drinking Water Act; NRDC Calls Suit Frivolous

WASHINGTON (April 15, 2003) -- Nebraska's attorney general met stiff questioning today at a court hearing on his constitutional challenge to the new EPA arsenic-in-drinking-water rule and the Safe Drinking Water Act.

Nebraska Attorney General Jon Bruning argued the case on behalf of the state, the industry-funded Competitive Enterprise Institute (CEI), and a few water utilities. Bruning's argument was met with a barrage of skeptical questions from Judges Harry T. Edwards and David S. Tatel of the U.S. Court of Appeals for the D.C. Circuit -- the second most powerful court in the nation. Judge A. Raymond Randolph also participated in the argument by phone.

"This is the third time Nebraska officials have challenged the constitutionality of the Safe Drinking Water Act. They lost the first two times, and this case is just as frivolous," said Erik Olson, a senior attorney and water expert at NRDC (Natural Resources Defense Council). Olson argued the case before the court today for NRDC, which intervened on behalf of the Environmental Protection Agency to defend the law and the arsenic rule. "This case is embarrassing for Nebraska," Olson added. "It's remarkable that officials from any state would argue that their residents do not deserve the same protections other Americans have from arsenic and other toxic contamination in their drinking water."

CEI and Nebraska contend that the arsenic rule and Safe Drinking Water Act are unconstitutional for three reasons. They assert that:

  • Congress lacks the power to regulate poisonous chemicals in water systems that are entirely within a single state because these water supplies do not affect interstate commerce;

  • The 10th Amendment prohibits Congress from requiring states to control tap water contamination; and

  • EPA's arsenic right-to-know requirements are a violation of the First Amendment, because Congress and EPA cannot "compel speech" (i.e. force water utilities to tell their customers about the risks of arsenic in their tap water).

The court's questioning made it apparent that a recent decision in an endangered species case resolved the first two issues against Nebraska ("Ruling on Endangered Species Upheld; Appeals Court Rejects Requests From California Developer," Washington Post, April 3, 2003). The judges also implied that Nebraska had waived its third challenge by failing to raise it before the agency, as the state all but conceded.

The Justice Department and NRDC contend that the rule and the law are constitutional. Justice and NRDC argue that Congress clearly has the authority to regulate chemical contamination of tap water because polluted drinking water has a significant impact on interstate commerce, including threats to public health, tourism, business, and processed food that includes tap water. Justice and NRDC also argue that since states are free to leave tap water regulation to the EPA or adopt their own drinking water program, there is no violation of the 10th Amendment. Finally, Justice and NRDC argue that the First Amendment does not bar disclosure requirements applicable to people or companies selling such products as tap water.

The arsenic rule has a long and controversial history. The U.S. Public Health Service adopted a 50 parts-per-billion (ppb) arsenic standard in 1942, before scientists conclusively linked arsenic and cancer. Twenty years later, USPHS recommended that the standard be reduced to 10 ppb, but it was not until Congress ordered EPA three times to update the rule -- and after NRDC sued EPA in 2000 -- that the agency proposed the standard, which the Clinton administration finalized in January 2001. The Bush administration then caused a furor by suspending the rule in March 2001. After a public outcry, an NRDC lawsuit, and a September 2001 National Academy of Sciences report finding that EPA had substantially underestimated arsenic's cancer risks, the Bush administration relented and allowed the new 10 ppb standard to stand.

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The Natural Resources Defense Council is a national, non-profit organization of scientists, lawyers and environmental specialists dedicated to protecting public health and the environment. Founded in 1970, NRDC has more than 550,000 members nationwide, served from offices in New York, Washington, Los Angeles and San Francisco.