Court Upholds Federal Arsenic-in-Tap-Water Rule Against State and Industry Lawsuit

WASHINGTON (June 20, 2003) -- In the face of a vigorous challenge from the State of Nebraska and several water systems represented by a conservative advocacy group, a panel of the U.S. Court of Appeals for the D.C. Circuit today unanimously upheld the U.S. Environmental Protection Agency's controversial 2001 arsenic in drinking water rule, and ruled that the federal Safe Drinking Water Act is constitutional.

"This is a big victory for public health and for all Americans who want safe drinking water," said Erik Olson, a senior attorney with NRDC (Natural Resources Defense Council). On April 15th, Olson argued the case before the court for NRDC, which had intervened on behalf of EPA to defend the law and the arsenic rule. This was the third time Nebraska politicians have unsuccessfully challenged the constitutionality of the Safe Drinking Water Act in court. "State officials, siding with industry, keep insisting that it's okay for the people of Nebraska to drink water containing more arsenic than in the rest of the country," Olson added. "It's three strikes, and they're out."

Nebraska Attorney General Jon Bruning argued the case personally for the state, the industry-funded Competitive Enterprise Institute (CEI), and a few water utilities. The court rejected CEI and Nebraska's contentions that the arsenic rule and Safe Drinking Water Act are unconstitutional. The court held that Congress has the power under the Commerce Clause of the U.S. Constitution to regulate poisonous chemicals like arsenic in water systems that sell water across state lines. Thus, the court rejected Nebraska's "facial" challenge to the constitutionality of the Safe Drinking Water Act.

In addition, the court ruled that the Safe Drinking Water Act is consistent with the Constitution's 10th Amendment, which restricts federal government regulation of states, because the law does not compel states to regulate arsenic in tap water (they may cede that authority to the federal EPA). Judge A. Raymond Randolph, a George H.W. Bush Appointee, wrote the decision, and was joined by Judges Harry Edwards, a Carter appointee, and David Tatel, a Clinton appointee.

The arsenic rule has a long and controversial history. A 50 parts per billion (ppb) arsenic standard was first adopted by the U.S. Public Health Service (USPHS) in 1942. Although USPHS recommended that the standard be dropped to 10 ppb in 1962, it was not until Congress ordered EPA three separate times to update the rule - and after NRDC sued EPA in 2000 - that the agency proposed the standard. The Clinton administration finalized it at 10 ppb in January 2001. A furor erupted after the Bush administration suspended the rule in March 2001. After public outcry, an NRDC lawsuit, and a National Academy of Sciences report (issued in September 2001) finding that EPA had substantially underestimated arsenic's cancer risks, the Bush administration reversed course and allowed the new 10 ppb standard to stand.

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.

Related NRDC Pages

The Bush Record

FAQ: Arsenic in Tap Water

Related Websites

Court decision (pdf)

NAS report summary

EPA arsenic in drinking water website