At the end of the Obama Administration, Congress enacted its first significant piece of environmental law since the 1990s by revising the 1976 Toxic Substances Control Act and requiring the assessment of the toxicity of a small number of new chemicals. At the time it was enacted I called it a “miracle on the Potomac” and I observed:
“The new law is far from perfect, but it is a major improvement over the ineffectual 1976 Toxic Substances Control Act. Under that law, only five of the over 80,000 chemicals now in use have been banned or substantially restricted in use. Not much action in four decades. Under the new law, EPA must review all chemicals now in commercial use. The law also allows EPA to require manufacturers to conduct tests of the chemicals without being required to first demonstrate that the chemical causes harm. This helps place the burden of proof on the chemical industry to demonstrate a chemical’s safety. Under the new law, EPA must prioritize the twenty riskiest chemicals in use and must complete their study of any chemical under review in less than seven years. This means that the riskiest chemicals can now be regulated. In return, the chemical industry achieved their goal of federal preemption of new state toxic chemical laws. Currently many states have enacted more stringent toxic chemical rules than those enforced by the federal government. Under the new law, new state rules focused on the same chemicals under review by the feds would be preempted, although existing state laws could remain in place. The federal approach simplifies compliance with rules, since chemical companies need only comply with one rule rather than a wide variety of state regulations.”
The chemical industry went along with the law because states were beginning to develop their own laws complicating compliance for national if not global chemical companies. Last week, the chemical industry colluded with Scott Pruitt’s Environmental Destruction Agency and proposed gutting the new law by limiting the assessment of risk to direct exposure and ignoring the persistence of chemicals in water, air, food or land. Perhaps we should take a page from Trump’s playbook and start referring to Pruitt as Dirty Scotty. As far as I’m concerned, we no longer have a federal EPA–Pruitt heads the EDA. It’s a shame, since we really need a federal agency to help protect the environment.
It is clear that America’s chemical companies are unwilling to allow the public the right to determine if their products are poisons that should be banned or in some way limited. It is also clear that Pruitt and Trump do not care if toxics are deregulated. Their actions put the health of Americans at greater risk.
Pruitt and President Trump know that Americans support a clean environment and that even this Congress would never try to change America’s reasonably strong and effective environmental laws. But they also know that each law is written in fairly general language that must then be given operational meaning through detailed regulations. The law may say that EPA should conduct a comprehensive risk assessment of new chemicals, but EPA must then define the methodology used when assessing risk. The Courts will then interpret if EPA has adhered to the intent of the law. It will be interesting to see if the Courts uphold the hollow regulations that are being promulgated by Pruitt’s Environmental Destruction Agency.
Writing about the new methodology for toxic risk assessment last week in the New York Times, Eric Lipton reported that:
“The approach is a big victory for the chemical industry, which has repeatedly pressed the E.P.A. to narrow the scope of its risk evaluations. Nancy B. Beck, the Trump administration’s appointee to help oversee the E.P.A.’s toxic chemical unit, previously worked as an executive at the American Chemistry Council, one of the industry’s main lobbying groups.”
This continues the Trump pattern of allowing business to self-regulate by capturing regulatory agencies and controlling their rule-making and enforcement process. It is easy to see that this will not end well. Some innocent people will be poisoned by this effort at deregulation, and two decades from now a chemical company will be paying millions if not billions of dollars in damages.
The chemical industry is a very creative place that has developed many new substances that we all benefit from. They should be given the latitude to invent and develop new products and market them. But they should not be allowed to poison us. This is a very simple principle. We don’t allow drugs to be used without testing them, we should not allow new chemicals to be used until we understand their impacts on human health and the environment. In some ways I understand why the chemical industry resists regulation, but frankly I do not understand why they don’t welcome reasonable efforts to ensure the safety of their industry. Do they really want their useful and safe products tainted by the ones they produce that are toxic? Do they think that a reputation for poisoning people helps them attract talented scientists?
While climate change is the big dramatic issue that has captured so much of our attention and generates a wide range of emotional response, toxic chemicals may well be an equally pervasive problem in the modern world. We know most of the causes and many of the effects of climate change. We know the steps needed to mitigate climate change, and while it is a challenge, we can reduce greenhouse gases while continuing our current lifestyles. The persistence of toxic chemicals and substances like plastics throughout the biosphere has impacts that are not yet well understood and may be very difficult to predict. The living earth is a complex set of interconnected systems that we are a long way from understanding. When we introduce new chemical and biological substances into those systems we often have no idea what will happen. While being poisoned by toxic chemicals is subtler than being flooded by sea level rise, it may end up being a more difficult challenge to address.
Our planet now has 7.5 billion people and will probably peak somewhere between 9 and 10 billion humans. Our consumption of everything is growing and as a living species we depend on a relatively poison-free supply of water, food and air. Given our numbers and our needs we should be paying more attention, not less, to the new substances we introduce into our economic life. The chemical industry has a key role to play in advancing the technology we will need to live sustainably on this planet. They should be promoting a more careful and deliberative process of introducing new technologies.
The industry proposal to limit the risk assessment to the risks that can be measured through direct exposure is a mistake. Direct exposure to a new chemical does not allow you to fully understand the impact of that chemical. What happens when the chemical interacts with other chemicals that may be present in the air, water and land? What happens if “direct” exposure in a laboratory is different than exposure in complex living earth systems? Why take a short-cut? Why not undertake a comprehensive risk assessment and be really certain that the new substance is safe?
Lobbying groups seem to look at regulation like it is noise in the system of economic production. I suppose criminal gangs think of the police that way too. Regulation provides rules that protect society from harm. In America, they are rarely implemented without extensive stakeholder consultation, and are often adjusted to reduce their economic impact. Instead of fighting these rules, companies should constructively engage in their development and implementation. I don’t expect to see this positive and engaged response from the chemical companies, but it would be helpful if they would change their approach.