Hijacking the Push for a Stronger TSCA

Industry Seeks to Weaken Tort & Regulatory Protections

In a recent study, scientists at the University of California, the University of San Francisco, and Washington State University found that 100 percent of the umbilical cord blood samples they had obtained from pregnant test participants contained bisphenol A (BPA), a common endocrine-disrupting chemical used in many consumer products. More than a third of those samples contained BPA levels at or higher than those shown to produce harmful health effects in animals.

In the United States, the framework for safeguarding people and the environment against the dangers of such toxic chemicals comprises three mutually reinforcing legal systems: federal regulation, state and federal civil justice systems, and state regulation. But this three-part framework for protecting against harmful exposures to toxic chemicals does not work as well as it could because each part of the framework has been substantially weakened — the civil justice systems by years of tort "reform," and federal and state regulatory systems by outdated laws and an ongoing campaign by industry and its allies against protective regulation. 

Congress is now considering competing bills to fix one part of this framework—the Toxic Substances Control Act (TSCA), the principal statute governing federal regulation of toxic chemicals.  The two bills—the more protective Safer Chemical Act (SCA) and the industry-backed Chemical Safety Improvements Act (CSIA)—both fall short of what is needed to fix TSCA, albeit to a widely varying degree.

Reform Is Overdue

To be sure, TSCA reform is overdue. The statute’s inadequate data-gathering provisions have prevented the Environmental Protection Agency (EPA)—the agency charged with implementing TSCA—from obtaining critical information on the potential hazards of the tens of thousands of chemicals currently on the market. And even when the EPA is able to confirm that a chemical is dangerous, TSCA provides the agency with little authority to take meaningful action to protect against the health or environmental risks the substance poses.

Because TSCA has been such a dismal failure, the other two parts of the protective framework—the state and federal civil justice systems and state regulation—have played a more prominent role in responding to toxic chemical threats. The threat of tort liability has discouraged the chemical industry from developing and using products that contain hazardous chemicals, such as asbestos and MTBE—a once-common gasoline additive. The discovery process in civil litigation has unearthed revealing information guarded closely by chemical manufacturers about the dangers posed by their products—information that the EPA was not able to otherwise obtain through TSCA’s weak data-gathering provisions. The state and federal civil justice systems have also played a critical compensatory role, providing victims of harmful exposures to toxic chemicals with an avenue to hold manufactuers accountable for the harms their products cause. For their part, several state and local governments have instituted innovative regulatory programs aimed at preventing harms from toxic chemicals. For example, California’s Proposition 65 program prohibits the discharge into drinking water sources of chemicals that are carcinogenic or cause reproductive problems and requires businesses to warn the public if their products contain these chemicals.

While neither of the two leading TSCA reform proposals—the SCA and the CSIA—do enough to strengthen federal regulatory public protections against toxic chemicals, the CSIA would take a significant step backwards by  effectively eliminating the two other parts of the framework—the state and federal civil justice systems and state regulation. The CSIA would preempt state and federal tort law by granting partial immunity to industrial chemical manufacturers and users whose activities have been deemed “safe” by the EPA.   The CSIA would also broadly preempt state efforts to request that manufacturers supply data regarding their chemicals and prohibit state and local governments from regulating a particular chemical in any way once the EPA has prioritized that chemical for further assessment.

Recommendations

This CPR Issue Alert explains how each part of the three-part protective framework contributes to reducing the risks posed by chemicals and recommends how TSCA reform can be used to strengthen all three parts of the protective framework. Effective TSCA reform should:

• Include a savings clause providing that nothing that the EPA does under TSCA shall affect the right of an injured party to sue the manufacturer, distributor, or seller of a chemical substance in a common law court;
• Specifically allow state and local governments to continue enforcing any regulations that are already in effect when the EPA issues a new TSCA regulation that covers the same chemical substances;
• Authorize state and local governments to issue new regulations that are more stringent than the EPA’s existing TSCA regulations, unless the chemical industry is able to demonstrate that simultaneous compliance with both is impossible. Enhance the EPA’s authority to take effective regulatory action to protect the public against chemicals that pose unacceptable health or environmental risks;
• Include a savings clause providing that nothing that the EPA does under TSCA shall affect the right of an injured party to sue the manufacturer, distributor, or seller of a chemical substance in a common law court;
• Specifically allow state and local governments to continue enforcing any regulations that are already in effect when the EPA issues a new TSCA regulation that covers the same chemical substances; and
• Authorize state and local governments to issue new regulations that are more stringent than the EPA’s existing TSCA regulations, unless the chemical industry is able to demonstrate that simultaneous compliance with both is impossible.

As Congress undertakes the critical task of overhauling TSCA, it must aim to strengthen the federal regulatory provisions of the statute while allowing the state and federal civil justice systems and state regulation to play as active a role as possible in safeguarding the public against toxic chemicals. A stronger federal regulatory program to address toxic chemicals is essential, but it must not come at the cost of robust and energized state and federal civil justice systems and state regulation.

Read the Issue Alert: TSCA Reform: Preserving Tort and Regulatory Approaches, by CPR Member Scholars Emily Hammond,Thomas McGarity, Sidney Shapiro, and Wendy Wagner, and CPR Senior Policy Analyst James Goodwin, CPR Issue Alert 1309, October 2013. Also check out the day-of release blog post, and the news release.