Tens of thousands of chemicals are used in the products that we purchase and use every day. It may come as a surprise to many that the vast majority of those chemicals are not now, and never have been, regulated.
Chemicals are everywhere in our lives, and not just in steaming test tubes. They’re in all kinds of consumer products including baby bottles, booster seats, furniture stuffing, soda cans and much more. Some of them are either suspected or known to cause cancer, heart problems, asthma and other life-threatening illnesses. Consumers can’t run toxicity tests on every product they buy, of course. That’s why the law should require manufacturers to test their chemicals and report their findings to the public.
But the Toxic Substances Control Act, the federal law governing the use of chemicals in commerce, leaves the Environmental Protection Agency with precious little authority to make this happen. By its terms, chemicals are presumed to be safe unless the EPA can muster evidence that they’re not, and only then can it order testing.
Think about that for a second, and you’ll see the problem: The EPA can’t order testing of chemicals unless it has the sort of evidence of risk that only testing can produce.
Even when a chemical has been tested and shown to be harmful to human health, such as asbestos, the EPA is effectively powerless to ban its use. The World Health Organization, the surgeon general and the EPA have all declared that exposure to asbestos is unsafe at any level. When the EPA attempted to regulate asbestos, its ban was invalidated by a single activist court, which found that it did not meet the steep requirements of the TSCA.
A chemical like asbestos, which is known to cause lethal illnesses, presents an obvious danger to public health, but the EPA is hamstrung by the statute’s language, which forces it to weigh the costs to industry of regulating a chemical against the benefits of banning its use. The EPA must prove that a chemical demonstrates an “unreasonable risk to human health and the environment” before it is regulated by the agency.
As a result, since the TSCA was adopted in 1976, the EPA has issued testing orders for only about 200 chemicals out of 80,000 approved for use, and it has banned just five.
After decades of legislative inaction to address the TSCA’s glaring deficiencies, Congress is finally considering legislation to fix that broken statute. Unfortunately, the bill now moving in the Senate, the Chemical Safety Improvement Act, would lock down the “unreasonable risk” standard the EPA is now forced to use to prove that a chemical is unsafe. What’s even worse, rather than eliminate that barrier, the new bill imposes dozens of new ones, without increasing the EPA’s budget.
As a result, an already strapped agency will have to jump through still more hoops, not fewer, to ban or otherwise regulate potentially toxic chemicals. Real toxic chemical reform would shift the burden of proof onto chemical manufacturers to demonstrate the safety of their products, with the EPA empowered to prioritize public health over the profits of the chemical industry.
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.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.