Air Force Gives “Fly-Fight-Win” Motto A New Meaning
Tulane Institute on Water Resources Law and Policy
Understanding of the complex relationship between people and water
TUWaterWays
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Authors: Christopher Dalbom, Mark Davis, Haley Gentry, & Ximena De Obaldía
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Air Force Gives “Fly-Fight-Win” Motto A New Meaning
Except this time the fight’s right here at home, and perhaps the mission to protect the safety and security of the United States only goes so far. The Air Force is refusing to comply with a Safe Drinking Water Act emergency order to address PFAS contamination in Tucson, claiming the EPA no longer has the authority to enforce, citing the recent Supreme Court decision overruling the Chevron doctrine. Yes, remember that decision that limited federal agency authority to implement their charging statutes and gives federal judges the final word on ambiguous areas of the law that often require technical expertise? Well, many thought the ruling would only impact an agency’s rulemaking authorities, not their enforcement authorities. But, apparently, that may not be the case. So, there’s another open-ended question about the future of federal administrative law for us to ponder. Because the EPA and the Air Force are both arms of an administration, they can’t sue each other, so this whole mess will be resolved internally, but it could open the door to private companies avoiding regulation or cleaning up via this new post-Chevron route.
The death of Chevron isn’t the only argument in the Air Force’s arsenal. As part of the emergency enforcement action, EPA ordered the Air Force to come up with a plan within sixty days to address the contamination and develop a filtration system specifically designed for PFAS. The Air Force disputes whether there is “imminent and substantial danger” to the nearby Tucson residents, saying that, at present, Tucson’s drinking water is under the current federal limit for PFAS. Yet the current system in place is not designed to deal with PFAS, and there are limited alternate drinking water sources, since it’s, ya know, in a desert. An EPA spokesperson pointed out that the “law does not require or expect EPA to wait until people are actively being harmed.” It’s a good reminder that all these environmental regulatory schemes that industries fight so hard to undo were enacted to protect people in the first place, not just the trees some of them may hug from time to time. Of course, it would be nice if the Air Force would be a good neighbor and address the contamination rather than forward novel legal theories as to why it shouldn’t. C’mon, USAF, “Aim High” isn’t supposed to refer to pollutant levels!?
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