D.C. Circuit Requires EPA to Regulate Perchlorate Levels Under the Safe Drinking Water Act

June 2023

Environmental, Energy & Climate Change Law and Regulation Reporter, Volume 3, Number 9

In NRDC v Regan, the United States Court of Appeal for the D.C. Circuit determined that the United States Environmental Protection Agency (EPA) erred in withdrawing its regulatory determination to regulate perchlorate in drinking water under the Safe Drinking Water Act (SDWA). The majority held that, once EPA makes a preliminary determination that a contaminant warrants regulation under the SDWA, the agency lacks discretion to withdraw the determination. A concurring opinion would have found EPA’s decision was arbitrary and capricious, agreeing that its withdrawal should be vacated, but disagreed with the majority’s view that EPA could never withdraw such a determination.

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