EPA’s Toxic “Negotiation”

It’s pretty amazing when the U.S. Environmental Protection Agency (EPA) can essentially use extortion as a negotiating tool, and industry casts it as a plea to find “common ground.” You can’t blame industry too much for trying to place the issue in a positive light when they basically have a gun to the head. Check out EPA’s latest argument to industry as to why it should support reform to the Toxic Substances Control Act. A March 13 story in Risk Policy Report explains it this way:

Jim Jones, the Obama administration’s nominee to head EPA’s chemical safety office, is urging industry officials to reach a “common sense” agreement with environmentalists and other stakeholders on how to reform the Toxic Substances Control Act ( TSCA) in order to speed chemical assessments or face economic losses as consumers abandon substances they fear may not be safe [emphasis added].

Speaking to the 2012 Global Chemical Regulation Conference, Jones said it is in industry’s interest to reach an agreement on how to amend the law to speed chemical reviews since the agency’s recently released plan for assessing — and possibly regulating — existing chemicals under TSCA shows the current law does not allow for speedy action.

“If we really do share a goal [of] safer chemicals, the only way to get there is common sense reform. We’re going to assess [10-15 chemicals per year] and that’s going to leave you [vulnerable.] That’s what’s in it for you,” he said. “Now is the time. Figure out where the agreements are and disagreements” on TSCA reform, Jones added.

Jones’s comments underscore a real dilemma for industry: Even though EPA lacks scientific justification for regulating many chemicals — which have been used safely for decades — regulators can demonize products simply by placing them on “concern lists.” But TSCA reform won’t improve things for industry, it will simply feed the regulatory beast. Jones might as well have said: “We have a gun to your head. Now please give us the power to pull the trigger and put you out of your misery.”

In fact, EPA officials wants TSCA reform to weaken the law’s risk standard — which holds regulators accountable by demanding the agency show reasonable evidence to warrant regulation. See my earlier blog post and paper on this topic.

Chemical companies should defend their products rather than succumb to such tactics. And they should fight tooth and nail to stall EPA’s ongoing “demonization” efforts. Lacking scientific justifications for regulating many chemicals, EPA has resorted to essentially blacklisting. Agency officials place chemicals on “concern lists” without having to be accountable to anyone. In addition, EPA’s “Design for the Environment” program pressures industry to voluntarily discontinue products and  encourages consumers to essentially boycott them — even though the products pose little risk.

In an analysis (May 24, 2010) for the Daily Environment Report, former director of EPA’s Office of Pollution Prevention and Toxics, Charles M. Auer (2002-2009), and colleagues point out potential economic and social impacts that such programs can produce.   An EPA “chemicals of concern list,” they maintain, would possibly produce the following results:

  • Chemical manufacturers are likely to see it as a virtual ‘‘black list’’ and will be concerned that the risk basis for the listing may be misunderstood or overstated.
  • Downstream commercial entities may see it as providing reason for them to investigate alternative substances to formulate safer products, restrict the distribution of products containing listed chemicals, or both.
  • Environmental groups will likely exploit listings to advance their political crusades against certain ‘‘problem chemicals.’’
  • States may draw chemicals from the list for restrictions or bans.
  • Congress may use the list to develop regulatory priorities for TSCA reform legislation.

Auer et al., note that similar impacts have resulted from other EPA listings of chemicals under the Clean Air Act and Safe Drinking Water Act.

Fortunately, the U.S. Chamber of Commerce recognizes the need to fight back. It explained to the Office of Management and Budget on the impacts of an EPA proposal pending review there to officially list several chemicals:

 In 2010, an article in Politics Daily quoted an EPA spokesperson as saying:  “Although the list is not a legal ban, it does serve as a signal to the marketplace that the agency wants these substances phased out.” EPA lacks the legal authority to “signal to the marketplace that the agency wants these substances phased out” absent sufficient evidence to support a § 6(a) rule. Yet, it appears EPA believes a considered, initiated or actual listing could be the functional equivalent of a ban, causing consumer and other product manufactures to shift away from the listed chemicals due to the wave of tort actions and advocacy group actions that will follow in the wake of the Agency’s announcements and determinations.

In fact, when EPA announced this program, retail giants Costco, Walmart, and Target all stated to the press that the list will impact their purchasing decisions, causing them to reduce and perhaps eliminate products containing listed chemicals. Target and Walmart have already begun to take action. Walmart, for example, had already begun replacing products containing phthalates in children’s clothing and footwear. Such voluntary product eliminations may appear to either be beneficial or innocuous, but that line of reasoning ignores the benefits the products bring and the potential risks associated with alternatives.

Such random elimination of valuable products and technologies amounts to a recipe for stagnation. First, it wastes the investments and ingenuity that developed the products in the first place. Second, it requires additional effort and investment to develop alternatives and for reformulations of products that used the original products as ingredients. These costs mean that fewer resources are available for research and development of other potentially life-enhancing initiatives.