TSCA Reform and the Presidential Election

by Noah M Sachs

September 06, 2012

When Barack Obama took office, reform of U.S. chemical regulation appeared to be an area of some bipartisan agreement, especially when compared to climate change, where it was clear a contentious fight would loom on Capitol Hill.  Prominent Members of Congress had called for reform of the outdated Toxic Substances Control Act (TSCA) of 1976, EPA Administrator Lisa Jackson soon laid out the Administration’s key principles for TSCA reform, and the largest chemical industry trade association acknowledged that TSCA needed to be “modernized” and “updated.”

Four years later, though, progress on TSCA reform has been frustratingly slow.  The 2010 Republican victory in the House dashed hopes for quick action on the Hill, and the chemical industry is once again defending the status quo.

The stakes are enormous.  Under TSCA, more than 90% of all chemicals in use have never been tested for their health and environmental effects.  TSCA requires the EPA to demonstrate that chemicals pose “unreasonable risk” prior to restricting their manufacture or use, and it erects elaborate procedural hurdles before EPA can make that finding.  Since TSCA was enacted, EPA has attempted to restrict only six chemicals under those provisions of the Act, and the last attempt was in 1989. 

We are “flying blind” by allowing massive public exposure to untested chemicals.  As a result of flaws in TSCA, we also lack solid comparative information about the toxicity of chemicals. For example, while many companies have stopped using Bisphenol-A (BPA) in baby products and food containers, we have little information about substitutes for BPA, and companies are not required to disclose what substitutes they are using.  From hydraulic fracturing fluids to flame retardants in furniture to construction materials in our homes, we simply do not know the health and environmental effects of tens of thousands of chemicals to which we are exposed.

TSCA reformers are now focused on the Safe Chemicals Act of 2011, a major overhaul of TSCA sponsored by Senator Frank Lautenberg.  The 2012 election could easily decide the fate of the legislation.

The Safe Chemicals Act overhauls TSCA by requiring chemical manufacturers to generate a minimum safety data set for each chemical they produce and empowering EPA to force dangerous chemicals off the market.  Most importantly, for chemicals suspected to be high-risk, the bill would shift the burden to manufacturers to demonstrate that the chemical poses a "reasonable certainty of no harm" before the chemical can enter the market.  Chemicals already in use can also be pulled off the market if a manufacturer cannot prove that the product meets the safety standard. This structure takes the burden away from EPA to prove “unreasonable risk.”

The Safe Chemicals Act is the best vehicle in years for a comprehensive reform of TSCA to protect public health, and last July, the Senate Committee on Environment & Public Works approved the bill in a strict party-line vote.  In drafting the bill, Senator Lautenberg engaged in a lengthy dialogue with industry leaders and GOP Senators, and the bill has picked up notable support from health insurers, nurses, and hospital chains.

Will the Safe Chemicals Act ever attract Republican support?  That depends on the stance of the chemical industry and whether certain provisions of the bill can be modified to mollify opposition.  If President Obama is elected, he would have to push much more vocally for chemical regulatory reform, which has not been a White House priority to date.  In 2010, the President’s Cancer Panel released a major report calling for TSCA reform and for shifting the burden of proof on chemical safety.  Obama’s EPA has also made some needed administrative changes in its implementation of TSCA.  But the legislative overhaul needed to reform this outdated statute has been elusive.

As for Mitt Romney, he has not taken any public stance on chemical regulation, TSCA reform, or the Safe Chemicals Act.  He has, however, frequently criticized environmental regulation as excessive, and it is doubtful that he would support the Act unless the chemical industry first gets on board.  This is one example of where opposition to new environmental regulation simply leaves a flawed, outdated, ineffective regulation in place. 

Tagged as: TSCA
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Professor Noah Sachs is Professor of Law and Director, Robert R. Merhige, Jr. Center for Environmental Studies at the University of Richmond School of Law.

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