Air Force Dodges PFAS Water Cleanup in Arizona, Citing Supreme Court Chevron Ruling

The United States Air Force has so far refused to comply with an Environmental Protection Agency order to develop a cleanup plan for drinking water in Tucson, Arizona, citing the U.S. Supreme Court's June ruling that overturned the Chevron doctrine, The Guardianreported Monday.

Air Force bases contributed to the contamination of the drinking water with toxic per- and polyfluoroalkyl substances (PFAS), often known as "forever chemicals" because they accumulate in the body, breaking down only very slowly. The compounds, which were introduced by chemical companies in the mid-20th century, are associated with a wide range of serious health conditions, including cancer.

In late May, the EPA ordered the Air Force and the Arizona Air National Guard to clean up the PFAS contamination of groundwater at a 10-square-mile site in Tucson, giving them 60 days to develop a plan.

In late June, the Supreme Court eliminated the Chevron doctrine, also called Chevron deference, which gave federal agencies latitude to interpret laws and establish regulations, and required judges to generally defer to their expert judgment. The landmark ruling, brought by the court's right-wing majority, cut away at the executive branch's ability to regulate pollution.

Progressive advocates warned that it would lead to corporate-backed legal challenges to environmental and health rules. As it turned out, corporations were not the only organizations ready to take advantage of the ruling. On July 18, the Air Force's lawyers wrote to the EPA arguing that the May order should be withdrawn due to the elimination of the Chevron doctrine; Arizona Public Media service AZPMreported that the Air Force formally requested that the order be dropped.

The Air Force's challenge is a unique one in that it pits one arm of the U.S. executive branch against another, and won't go to the courts, but both scientists and legal experts warned that it could be a sign of the hard-nosed approach that polluters could take following the Chevron ruling that favors them.

"The floodgate begins to open," Chris Nagano, a former scientist at the Center for Biological Diversity and the U.S. Fish and Wildlife Service, wrote on social media in response to The Guardian's article. "The U.S. Air Force refuses to clean up their toxic chemical contamination citing the termination of the Chevron doctrine by the corrupt Supreme Court. I thought the Air Force was supposed to protect the American People?"

Deborah Ann Sivas, an environmental law expert at Stanford Law School, told The Guardian that the new ruling shouldn't affect the EPA's order and the Air Force seemed to be seeking to expand its scope to block regulatory action.

"It's very odd," she said. "It feels almost like an intimidation tactic, but it will be interesting to see if others take this approach and it bleeds over."

Legal experts say that, despite the Air Force's claim, the Supreme Court's recent ruling pertaining to Chevron shouldn't affect the EPA's enforcement actions, such as the May order—it should only affect the agency's rule-making process, The Guardian reported.

The order called for the Air Force and the Arizona Air National Guard to establish a filtration system designed specifically to remove PFAS, the estimated cost of which would be $25 million, or 0.1% of the Air Force's annual budget, the newspaper reported.

The affected 10-square-mile site is beneath Tucson International Airport, Air Force Plant #44, and the Morris Air National Guard base. It's been known to be extraordinarily polluted since long before the presence of PFAS was found—in fact, it was designated a Superfund site in the 1980s due to the presence of contaminants from solvents and degreasers.

Since 2016, samples from the site's groundwater have shown extraordinarily high levels of PFAS—as much as 53,000 parts per trillion, when the allowable legal limit for drinking water is between just 4 and 10 ppt, depending on the type of PFAS. However, a series of measures, including filtration, water diversion, and the closing of wells, have been taken so that such contaminated water is not in the local drinking supply.

There was a close call in 2021 in which contaminated water nearly breached the Tucson water supply, the EPA's order says, and though the city's water is currently safe, the issue remains concerning for locals, USA Todayreported in June. It's also creates added costs.

"When we have an area where the water quality is impacted and we're not able to serve that to customers, that is an added cost. It really diminishes the resource that we have available," Natalie DeRoock, a spokesperson for Tucson Water, the local utility, told USA Today. DeRoock said that while Tucson pumps in some water from the Colorado River, it depends largely on groundwater, a finite resource.