Consider these facts:

Congress passes the recently proposed H.R. 535, titled the "PFAS Action Act of 2019," as an amendment to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The act states as follows:

"(A)RULE. ...the [Environmental Protection Agency] Administrator shall, by rule, require that comprehensive toxicity testing be conducted on all chemical substances that are perfluoroalkyl or polyfluoroalkyl substances."

ChemUSA - leading manufacturer of GenZ - the brand name of aperfluoroalkyl substance - provided comments during the informalrule-making process that toxic testing of GenZ - used in certain military applications - would make its manufacturer cost prohibitive.

In the final rule, the EPA administrator exempts the substance GenZ from toxic testing. The EPA is sued by the Natural Resources Defense Counsel under 702 of the Administrative Procedures Act.(Assume NRDC has standing to sue)

What is the likely ruling by the court?

Select one:

a.

The Court allows deference to the EPA's

decision to not require toxicity testing for

GenZ due to its importance to national

security.

b.

The Court allows deference to the EPA's

decision to not require toxicity testing for

GenZ because EPA considered its economic

importance during the rulemaking process.

C.

The Court finds that the EPA's decision to

not require testing for GenZ is arbitrary

and capricious, because GenZ is

a perfluoroalkyl and the statue is explicit

on the toxic testing requirement.

Continue general facts from previous question

regarding the PFAS Act:

Now assume that instead of electing to pursue an

informal rule-making process, the EPA administrator

elects to pursue a formal rule-making process with

formal hearings.

In a hearing to determine whether the brand chemical

GenZ is indeed a perfluoroalkyl, the EPA accepts the

testimony of a scientist employed by ChemUSA who

testifies that a chemical additive to Gen disqualifies

its classification as a perfluoroalkyl.

Three other scientists testify at the same hearing that

the additive is irrelevant to GenZ's classification as

a perfluoroalkyl.

Based on evidence presented at the hearing, the EPA

issues a final rule that exempts GenZ from toxic

testing requirements.

NRDC - again with standing - sues under APA $702

If the Court finds in favor of NRDC, what will be the

specific language the Court uses in its ruling?

Select one:

a

"arbitrary and capricious"

b.

"unsupported by substantial evidence"

C.

"not entitled to Chevron deference"