One Step Forward and Two Steps Back on Toxic Chemicals

This post has also been published on The Huffington Post.

Within the next few days, Congress is likely to enact the first update of a major environmental statute in many years. Widely hailed as a bipartisan compromise, legislation to amend the Toxic Substances Control Act (TSCA, pronounced like the opera Tosca) was made possible by the steely and relentless determination of the U.S. chemical industry. The deal places burdens on the Environmental Protection Agency (EPA) that will undermine public health and environmental protections for many years to come. 

A well-funded, politically empowered EPA that employed the best and the brightest of American scientists might be able to make lemonade out of the lemons scattered throughout this unfortunate legislation. But it's far more likely that the agency we have today will soon become mired in "paralysis-by-analysis" before it takes action and a flood of litigation after it – only occasionally – acts. 

Toxic chemical exposures are so loosely regulated that the Government Accountability Office, the top-flight auditor of the federal government, has placed EPA's regulatory efforts on its select list of "high risk" programs that are vulnerable to mismanagement and ineffectiveness. In contrast to what many Americans believe, new chemicals are not required to undergo any testing before they are sold in large volumes in the marketplace unless EPA puts its foot down and are rarely subject to regulatory controls until some entity or person throws them out. The old TSCA, enacted in 1976 and never amended, was too weak to give the agency the power it needed to resist chemical industry efforts to over-complicate simple testing and control requirements. Among other shortcomings, the statute as interpreted by the courts demanded that EPA demonstrate that controls were feasible – translated as not too expensive in relationship to their benefits – and that the agency explain how it had considered all of the less expensive regulatory alternatives. 

Citizens of Charleston, West Virginia got a grim reminder of these unfortunate circumstances when an untested chemical (4-methylcyclohexanemethanol) used to "wash" raw coal to remove impurities spilled into their water supply. Stymied by a vacuum of information on the chemical, regulators were at a loss in advising residents whether and for what purposes to use the water. Governor Earl Ray Tomblin told citizens that they were on their own in deciding what to do, giving a foreboding glimpse of what life without government could become if the delicate balance in American politics erodes existing protections any further. 

The current TSCA revision bill gives EPA greater authority to require testing of new chemicals, but it does not give the agency anywhere near the resources it will need to do a decent job. The domestic chemical industry brags that it sells $800 billion worth of chemicals annually, accounts for 25 percent of Gross Domestic Product, and "directly touches" 96 percent of all manufactured goods. Yet industry fees needed to support EPA's vital work to prevent toxic chemical exposures – a Herculean task that includes the backlog produced by 40 years of weak oversight – are capped at $25 million annually. In fact, the legislation would cancel these fees in any year that Congress does not maintain general taxpayer revenues devoted to the revival of this vital program at the levels appropriated in Fiscal Year 2014. Or, in other words, the legislation would cancel what industry must pay if Congress cuts the revenues you and I spend to support this weak program below what we paid a few years ago, perpetuating the resource gap that has confounded EPA's efforts to get a grip on toxics. 

Congress could have created a more effective incentive for EPA to bridge the yawning data gap regarding the nation's most dangerous chemicals had it established a robust schedule for evaluating them, but once again it ducked that responsibility. Instead, the agency is only required to begin work on "risk evaluations" for ten chemicals within six months after the date of enactment. Three and one-half years after the bill becomes law, EPA must ensure that it has begun evaluations of 40 more chemicals but, incredibly, only 20 of those must be high priorities from a public health and environmental perspective. In a telling recognition of the legislation's true agenda, the other 20 must be "low-hazard" chemicals for which manufacturers seek the government's seal of approval. This approach runs the risk of transforming TSCA into a parody of a self-respecting statute by placing public health, the environment, and industry self-interest on the same plane. 

But perhaps the most corrosive, long-term effect of this compromise is hidden deep within its 181 pages. Supporters tout the legislation's new prohibition on considering costs in evaluating a chemical's risks, and this approach is definitely the one step forward that some environmentalists fought hard to win. But evaluations don't curb toxic exposures. 

Before EPA can actually issue any rule controlling the uses of a toxic chemical product, it must conduct a virulent form of cost-benefit analysis. Those analyses must determine not just whether the public health and environmental benefits of such controls outweigh the costs the controls will impose on the chemical industry, as is typically done today under presidential executive order. Instead, the agency must determine the "reasonably ascertainable economic consequences of the rule," including its "likely effect on the national economy," phrasing that parrots the worst language of existing law. But existing law only required a "statement" regarding those impacts because it was passed years before extensive cost-benefit calculations became de rigueur. Walking purposefully back two steps, the compromise legislation thrusts those considerations into the context of a formal analysis that must also quantify the impact of "one or more primary alternative regulatory actions" that EPA considered. 

Cost-benefit analyses limited to benefits for the public and costs for the specific industry are already hundreds of pages long. An analysis of their effects on the entire country's economy could increase this frantic and frequently erroneous number crunching by a significant amount. Certainly, a courageous and well-funded EPA could make manageable this requirement. It's far more likely, though, that the agency will slow down even more as it wrings its hands under the bright spotlight of industry scrutiny. Worse, it's unlikely that any environmental statute will ever survive amendment again without industry demands that comparable language be added.

Rena Steinzor is a University of Maryland Law Professor and a Member Scholar of the Center for Progressive Reform (CPR).