New CPR Issue Alert on TSCA Reform: Progressive Principles for Toxic Risk Regulation

Today, Senator Boxer's Environment and Public Works committee will hold a hearing to discuss the best ways to fix the Toxic Substances Control Act (TSCA), the badly outdated law governing some 80,000 chemicals used in commerce in the United States. Communities across the country are not aware of the dangers present in chemicals in everything from baby bottles to face creams, with little to no regulation because of weak TSCA legislation passed over 40 years ago. Strong toxic chemical regulation is needed that protects the rights of consumers to go to court, that strengthens the ability of states to regulate toxics, and streamlines the EPA's process for reviewing chemicals instead of bogging it down with repeated analysis and procedures that focus on the profitability of the chemical industry instead of the health and safety of the public. CPR Board Member Thomas McGarity will testify, and CPR Member Scholar Noah Sachs and I have put together a new Issue Alert that provides some context. TSCA, as interpreted by the courts, puts huge hurdles in EPA's path even when the agency has clear evidence that a chemical poses unreasonable risks to human health or the environment. Hundreds of new chemicals are approved for the market every year before EPA has a full suite of health and safety data, and EPA must overcome significant procedural hurdles before it can mandate additional testing. States have stepped in to fill the enormous regulatory void with a variety of programs, from restricting individual chemicals in specific uses (e.g., bisphenol-A in baby bottles) to expansive labeling schemes (e.g., Proposition 65 in California) to green chemistry and alternatives-analysis programs (e.g., Maine, Minnesota, and Washington programs for "Chemicals of High Concern"). The Senate has two vastly different proposals on the table for dealing with the broken law. S.1009, the Chemical Safety Improvement Act, is a compromise bill that has strong support from the chemical industry. S.696, the Safe Chemicals Act, earned plaudits from environmentalists when it was introduced earlier this year. Our new Issue Alert focuses on the principles for TSCA reform that CPR Member Scholars and staff have identified as most important. It is by no means an exhaustive list, but it underscores the different approaches to TSCA reform that the two bills take. We cover a handful of issues, including: Testing: TSCA creates a "Catch 22" for EPA, requiring that the agency show a chemical may present an unreasonable risk of harm to human health or the environment before it can demand new test data that would help the agency determine whether it can make that case. The provision should be scrapped, and replaced with language that gives EPA broad authority to demand new test data for any reason related to implementation of the Act. Standard of review: The federal courts' crabbed reading of TSCA has left Americans vulnerable to a regulatory system in which chemicals are assumed safe until proven hazardous, and EPA's efforts to make a case to the contrary are stymied by insufficient information and limited authority to regulate. The Issue Alert proposes a novel, competition-based standard of review that would transform the TSCA framework from "anything goes" to "the best of what science can offer," based on the groundbreaking work of CPR Member Scholar Wendy Wagner. Deadlines: Time and again, Congress has gone back to rewrite public health statutes to demand that regulatory agencies take specific actions according to specific schedules. TSCA has never undergone such revisions, which is why the safety of thousands of chemicals has never been reviewed by EPA. It's high time Congress set a schedule for review. Preemption: State legislatures, regulatory agencies, and courts play valuable roles in preventing toxic exposures and ensuring compensation for people who are adversely affected by dangerous chemicals. TSCA must encourage vibrant state action to protect people and the environment by preempting only those laws that make compliance with federal standards impossible.