New CPR Issue Alert on toxics: reform must help, not hinder states and victims' rights

In the United States, the framework for safeguarding people and the environment against the dangers of toxic chemicals comprises three mutually reinforcing legal systems: federal regulation, state and federal civil justice systems, and state regulation. Each part of the framework however, 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weakened — the civil justice systems by years of tort "reform," and federal and state regulatory systems by outdated laws and an ongoing campaign by industry and its allies against protective regulation.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—while weakening the civil justice systems and state regulation even more.  

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.

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.

Center for Progressive Reform Member Scholars Emily Hammond, Thomas McGarity, Wendy Wagner and CPR Senior Policy Analyst James Goodwin and I have written a CPR Issue Alert that seeks to explain how each part of the three-part protective framework contributes to reducing the risks posed by chemicals, and we recommend ways that TSCA reform can strengthen all three parts of the protective framework. 

In the Alert we focus on the need to:

• 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;  
• Give the EPA broader authority to demand information from the chemical industry on potentially toxic chemicals;
• Strengthen TSCA’s chemical testing provisions by establishing a list of high-priority chemicals for chemical risk assessment and including statutory deadlines, enforceable through citizen suits, for completing these assessments;
• Shift the burden to chemical manufacturers to test new chemicals before they enter the marketplace;
• Enhance the EPA’s authority to take effective regulatory action to protect the public against chemicals that pose unacceptable health or environmental risks.

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.