Michigan’s PFAS Drinking Water Limits Struck Down by Court
Michigan’s rules on the limits of PFAS, or per- and polyfluoroalkyl substances, in drinking water have been struck down by a state appeals court. In a 2-1 decision, the Court of Appeals panel ruled that the state had failed to follow the required rule-making process because it did not estimate the cost to businesses of complying with the new limits on PFAS levels.
The rules, established in 2020, were considered some of the toughest in the nation when it came to limiting levels of the forever chemical in drinking water. However, chemical giant 3M Company challenged the new state rules in court. The company argued that the state had not taken into account all the costs to businesses related to groundwater cleanup standards that were tightened as a result of the changes to the drinking water standards.
The majority opinion, written by Judges Christopher Murray and Michael Gadola, stated that Michigan’s rule-making process requires an estimation of costs to businesses. They argued that if the state cannot provide such an estimation, then it cannot propose a rule that complies with the Administrative Procedures Act.
The dissenting opinion, from Judge Allie Greenleaf Moldonado, argued against the majority’s decision. The Court of Appeals judges deciding on the case were appointed by different governors, with Murray appointed by Republican former Governor John Engler and Gadola appointed by former Republican Governor Rick Snyder.
The Department of Environment, Great Lakes and Energy had established a ruleset outlining costs for state and local governments, but it only identified costs for businesses with their own water supplies. The agency acknowledged that other businesses would also face costs but considered it impractical to tally an exact cost due to the variability from business to business.
This ruling follows a previous decision by the Court of Claims, which also sided with 3M and declared the drinking water rules invalid. The Court of Appeals has now followed suit, stating that the failure to estimate costs related to groundwater cleanup resulted in noncompliance with the Administrative Procedures Act, rendering the rules invalid.
The decision has implications for the regulation of PFAS levels in drinking water in Michigan. Stakeholders will need to reconsider and possibly revise the rule-making process to ensure compliance with the law while taking into account the costs to businesses and the necessary protection of public health.
This ruling showcases the challenges faced by state governments as they strive to establish effective regulations to address emerging contaminants in drinking water. Striking the right balance between health protection and economic considerations will be crucial moving forward.
