United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued January 27, 2023 Decided May 9, 2023 No. 20-1335 NATURAL RESOURCES DEFENSE COUNCIL, PETITIONER v. MICHAEL S. REGAN, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY AND ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS AMERICAN WATER WORKS ASSOCIATION, INTERVENOR On Petition for Review of a Final Action of the Environmental Protection Agency Sarah V. Fort argued the cause for petitioner. With her on the briefs was Charles R. Corbett. David J. Berger was on the brief for amici curiae Academic Scientists in support of petitioner. 2 Sarah A. Buckley, Senior Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief was Todd Kim, Assistant Attorney General. Corinne Snow argued the cause for respondent-intervenor American Water Works Association. With her on the brief was Ronald J. Tenpas. Jeremy C. Marwell entered an appearance. Annie S. Amaral and Thomas C. Roberts were on the brief for amici curiae American Chemistry Council and Western Growers in support of respondents. Before: PAN, Circuit Judge, and SENTELLE and TATEL, Senior Circuit Judges. Opinion for the Court filed by Senior Circuit Judge SENTELLE. Opinion concurring in the judgment filed by Circuit Judge PAN. SENTELLE, Senior Circuit Judge: In 2011, the Environmental Protection Agency (“EPA”) issued its “final determination to regulate perchlorate in drinking water” under the Safe Drinking Water Act. Drinking Water: Regulatory Determination on Perchlorate, 76 Fed. Reg. 7,762, 7,762 (Feb. 11, 2011). That determination started a clock under the Safe Drinking Water Act requiring EPA to propose regulations within twenty-four months and promulgate regulations within eighteen months of the proposal. See 42 U.S.C. § 300g- 1(b)(1)(E). But EPA never promulgated perchlorate regulations. Instead, nine years later, the agency purported to withdraw its regulatory determination. See Drinking Water: Final Action on Perchlorate, 85 Fed. Reg. 43,990, 43,991 (July 21, 2020). Natural Resources Defense Council (“NRDC”) 3 petitions for review of this action, arguing that EPA lacks the authority to withdraw a regulatory determination under the Act and that, even if EPA possesses such authority, it acted arbitrarily and capriciously by doing so. EPA, joined by Intervenor American Water Works Association, defends its action. Because the Safe Drinking Water Act does not permit EPA to withdraw a regulatory determination, we grant NRDC’s petition, vacate EPA’s withdrawal of its regulatory determination, and remand to the agency for further proceedings. I. Background a. Statutory Framework The Safe Drinking Water Act authorizes EPA to regulate potentially harmful contaminants in the nation’s drinking water. See 42 U.S.C. § 300g-1(b)(1)(A). First enacted in 1974, the Act has since undergone several amendments. The 1986 amendments required EPA to select at least twenty-five new contaminants for regulation every three years. Pub. L. No. 99- 339, § 101(b)(3)(C), (D), 100 Stat. 642, 644 (1986). Congress apparently created this strict regulatory scheme, at least in part, because it believed EPA had failed to regulate a sufficient number of contaminants under the Act’s prior structure. See S. Rep. No. 104-169, at 8, 12 (1995). When …
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