The new bill would also short-circuit state and local efforts to protect consumers by allowing that federal rule-making on a chemical to pre-empt state action, effectively barring states from creating laws regulating chemicals or conducting studies on their safety if the EPA is doing so. One casualty of the law would be California’s landmark Proposition 65, which mandates the labeling of certain toxic chemicals.
In our decades of research and writing on tort law and environmental regulation, we have never seen a pre-emption provision that intrudes more deeply into the civil litigation system at the state level than the one in this bill. If victims of toxic chemical exposure attempt to recover damages at the state level, their cases would have to be dismissed if the EPA had concluded — rightly or wrongly — that a chemical was safe.
For example, Hurricane Katrina victims who were housed in formaldehyde-contaminated Federal Emergency Management Agency trailers successfully sued the trailer manufacturers for damages. Under this bill, if the EPA found that formaldehyde passed its safety test, those families would be denied even their day in court.
Reform of toxic chemical legislation is long past due and badly needed. But the current bill, at least as it stands right now, fails the most fundamental of tests: It doesn’t make the existing law better.
Thomas O. McGarity and Wendy E. Wagner are professors at the University of Texas School of Law in Austin. Both are member scholars of the Center for Progressive Reform.