Chemical Industry takes Aim at Citizen Suits with ‘Reform’ Bill

The recent chemical spill disaster in West Virginia has brought into sharp focus the weak measures we have in place for safeguarding people and the environment against exposures to harmful chemicals.  State and civil justice systems have helped to fill the resulting void by providing individuals who have suffered harmful exposures with an opportunity to hold accountable any people or corporations responsible for the chemical by seeking reasonable compensation for their injuries.  It’s often difficult to win these cases, and even victory won’t undo the pain and fear that comes with suffering from cancer or other illnesses that can result from harmful exposures to toxic chemicals, but the process does hold out the possibility that victims can obtain some measure of justice for the harm they have endured.

Recently, industrial chemical manufacturers and users have supported a new and subtle method for undermining legal responsibility.  They are using efforts in the U.S. Senate to update the Toxic Substances Control Act (TSCA)—the primary law governing federal regulation of hazardous chemicals—to enact “evidentiary preemption.”  Specifically, the chemical industry is supporting the Chemical Safety Improvements Act (CSIA), which contains a provision that would fundamentally change how civil courts consider evidence regarding the harms posed by toxic chemicals in many tort cases where people have been injured by those substances.  The upshot is that in many instances even plainly dangerous chemicals would be incorrectly regarded as “safe” for evidence purposes, which would effectively immunize the manufacturers and users of those chemicals against any liability for the harms that the substances might cause.  These companies already have a pretty sweet deal, since TSCA is so ineffective in controlling chemicals in the first place.  This bill would guarantee them an even sweeter deal: weak regulations and a hamstrung civil justice system. 

Here’s how the CSIA’s evidentiary preemption would work.  The CSIA would charge the Environmental Protection Agency (EPA) with making “safety determinations” for certain chemicals.  The evidentiary preemption provision would then make these safety determinations both automatically admissible in any litigation and force both federal and state courts to recognize the EPA’s conclusions as “determinative of whether the substance meets the safety standard under the conditions of use addressed in the safety determination.”  In short, if the CSIA’s evidentiary preemption provision becomes law, the EPA’s formal determination that certain uses of a particular chemical are safe would “preempt” courts from considering any additional evidence that might lead them to conclude otherwise—even if the manufacturer knew that the EPA's findings were based on bad or partial evidence, had become outdated, or were in some other way flawed.

So, imagine a worker develops cancer or some other chronic illness as a result of being exposed to a harmful chemical while in the workplace.  If that worker’s use of the chemical is covered by an EPA safety determination, which concluded that the particular use was “safe,” then the worker would be blocked from introducing any other available evidence that demonstrates that the use of the chemical was in fact harmful when suing the chemical’s manufacturer.  In that case, the court probably would be left with no choice but to find that the product was not “defective,” and the chemical manufacturer could therefore not be held liable for the worker’s injury.  Tens of thousands of workers are exposed to toxic chemicals every day, and the civil justice system needs to remain an avenue open for them to achieve justice when exposed to harmful chemicals.

Under long-standing tort law doctrines, government safety standards have always been relevant for jury decisions in these types of cases because they establish a clear standard of conduct, but juries in appropriate cases remain free to conclude that a manufacturer should have gone beyond the standard set by the government in cases where that standard is met.  This approach makes good sense, too.  Regulatory standards may become outdated or inadequate in light of newly available information—information that some manufacturers might otherwise ignore.  Moreover, because of the difficulty of updating standards, once a standard is in place, resource-starved agencies are unlikely to devote the staff time to updating them, despite the need to do so. 

The CSIA’s evidentiary preemption provision would mark a stark departure from this traditional approach.  As a result, the many benefits that result when both the civil justice and regulatory systems are working in tandem would be undermined.

A related problem is that the CSIA requires the EPA to employ a weak safety standard when making these determinations.  As a result, the EPA is likely to systematically understate the public health or environmental hazards posed by harmful chemicals.  To make matters worse, industry groups thoroughly dominate the rulemaking process by which these safety determinations would be made, enabling them to weaken the determinations even further.

CPR Member Scholars Emily Hammond, Thomas McGarity, Noah Sachs, and Wendy Wagner, CPR Senior Policy Analyst James Goodwin and I have written a new Issue Alert that explains how CSIA’s evidentiary preemption provision would undermine the ability of the civil justice system to hold chemical manufacturers and users accountable for putting people and the environment in harm’s way.  We recommend that Congress reject anything like the CSIA’s evidentiary preemption provision when pursuing TSCA reform, and that it likewise reject the inclusion of similar provisions in other bills to update existing environmental, health, and safety statutes.  Otherwise, individuals who are injured by exposure to a toxic substance may well end up with no opportunity to hold accountable the people or companies responsible by having their day in court.