After spending close to five years proposing and then adopting risk-management rules about a toxic chemical once used as a flame-retardant additive, the U.S. Environmental Protection Agency (EPA) declared it had done all that it needed to do. The U.S. Court of Appeals for the Ninth Circuit disagreed.
On May 13, 2026, a panel issued a unanimous ruling remanding the EPA’s rule for Decabromodiphenyl Ether (decaBDE), which EPA revised in 2024, back into the rulemaking process. It stated that the EPA’s rationale “was not supported by evidence.” Under a 2017 amendment to the Toxic Substances Control Act (TSCA), the agency was required to take timely regulatory action on decaBDE, including evaluating its exposure pathways in recycling, disposal, wastewater, and sewage.
The EPA’s final rule offered several reasons why it believed tracking the release of decaBDE into recycling wasn’t worthwhile, prompting a flurry of lawsuits from environmental groups concerned about the toxic chemical's danger to public health. The Ninth Circuit’s agreement with the petitioners means the EPA will have to revisit the data to support a proposed rule for public comment, after already revising its PBT rules once.
Either Catching on Fire or Suffering Organ Damage, Huh? Decisions, Decisions
As a highly effective fire retardant, decaBDE was a popular additive. It’s found in personal protective equipment (PPE), replacement parts for aerospace and motor vehicles, and countless consumer products. However, the protection it offers may come with a price. DecaBDE is largely phased out and heavily restricted, but still present in older products and a few very narrow current uses.
While decaBDE’s ability to prevent flames is a boon, it carries the triumvirate for dangerous chemical substances: it’s persistent, bioaccumulative, and toxic (PBT). Under TSCA Section 6(h), as amended by Congress in 2017, the EPA was required to examine PBT chemicals and to follow the Federal Rulemaking Process to propose rules. This includes determining their effect on human health within three years, accepting public comments, and issuing a final rule within another 18 months. PBTs like decaBDE have been linked to organ damage, cancer, and weakening of both the immune and reproductive systems.
Despite missing statutory timelines, EPA issued a final rule on the distribution of decaBDE and other toxic flame retardants, such as phenol, isopropylated phosphate (known commonly as PIP (3:1)), and published it in the Federal Register in 2024. While the rule imposed new restrictions on certain conditions of use for decaBDE in specific products and required warnings for workers exposed to plastic shipping pallets containing the chemical, it also stated that EPA would not further regulate decaBDE in recycled plastic, disposal of materials containing it, wastewater, or sewage sludge (which is used to make fertilizer).
For those who consider decaBDEs a threat to the environment, the EPA’s final rule was unacceptable. Lawsuits soon followed.
Scrutiny of EPA’s Persistent, Bioaccumulative, and Toxic Substances Regulation
The petitioners, including Alaska Community Action on Toxics, the Yurok Tribe, the Consumer Federation of America, and the Center for Environmental Transformation, claimed that the EPA’s refusal to regulate the environmental effects of decaBDE products rendered the 2024 final rule unlawful. Their overlapping lawsuits alleged that the EPA’s inaction would cause an unreasonable risk to public health.
The suits also argue that the EPA’s attempts to justify the lack of monitoring fall far short of the mark. Citing the futility of measuring “low levels” of decaBDE, the high cost, and the potential negative effect on consumer recycling, the EPA claimed that the rule was correct as is. In addition, it argued that wastewater and sewer discharges were already addressed under other environmental statutes, so additional monitoring under TSCA was unnecessary.
The Ninth Circuit panel rejected that attempted rationalization, with all three judges agreeing that the EPA‘s claims were not supported by evidence. It also disagreed with the EPA’s argument that 2004’s Bluewater Network v. EPA recognizes the agency’s authority to regulate in stages, ruling that it didn’t absolve them from a responsibility they showed no inclination to pursue. The 2024 final rule will remain in place while the EPA either restarts the rule-making process or finds a better way to bolster its stance without incurring another judicial scorching.
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