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The Many Bad Reasons to Support TSCA "Reform"

With reform to nation’s chemical law—the Toxic Substances Control Act (TSCA)—basically around the corner, groups from both left and right are commenting on why we need reform and for some, why the current proposals should pass quickly. But the reasons they offer aren’t very compelling.

The Consumer Electronics Association (CEA) exclaims in a press release:

Our nation’s chemical safety laws are outdated. Without reform, we’ll likely see a continued proliferation of costly and ineffective state-based chemical regulatory programs that confuse consumers and manufacturers alike. Congress must restore the public’s confidence in EPA’s chemical control laws, and one way of doing so is by passing S. 697.

TSCA may be old, but it has the best risk standard on the books, as I note here. And passing a major bureaucratic regulatory initiative to “restore public confidence” is, well, just plain dumb.

I do understand CEA’s position on using reform to halt bad state-level laws. But it’s not clear this reform will accomplish that task. Sure, it would be great if we could pass a law that would curb a growing patchwork of ill-conceived and dangerous state-level chemical regulations that impede interstate commerce, raise consumer prices, reduce choice, and force product reformulations resulting in inferior consumer products. And current proposals include some language to preempt such laws under certain circumstances, but overall these provisions may be too weak to make a difference. 

The number one bad reason for TSCA reform comes from activist green groups. According to NRDC, we need reform to protect public health, as noted on the group’s website:

The country's main chemical safety law -- the Toxic Substances Control Act (TSCA) -- makes it nearly impossible for the Environmental Protection Agency (EPA) to take regulatory action against dangerous chemicals, even those that are known to cause cancer or other serious health effects…But weaknesses in the law have left the EPA largely unable to act on known health dangers or require testing on specific chemicals that may be unsafe. …To protect public health and allow the law to work as originally intended, we need new legislation that will reform and strengthen TSCA by shifting the burden of proof from the federal government to the chemical industry.

Never mind that there is no evidence to support assertions that trace exposure to chemicals through consumer products pose risks, such as cancer or other health effects. And never mind the fact that people are living longer, healthier lives than ever before despite the fact that chemical use has gone up. As I have noted many times, TSCA reform has nothing much to do with public health since the risks at issue are too small to even measure. 

Richard Denison with the Environmental Defense Fund has been one of the leading supporters of TSCA reform and worked with industry to make a host of changes to reform bills. Bloomberg BNA published Denison’s list of “reforms,” which follows below, that he says will improve the law. (Note: I numbered Denison’s list to correspond with my perspectives on each item which follows below; BNA originally used bullet points.) According to Denison, the bill’s useful provisions include:

  1. “allowing the EPA to obtain chemical data by ordering it; (Under TSCA the agency must issue a rule to obtain data or obtain it through negotiations with chemical manufacturers.)
  2. a mandate to conduct safety reviews on all chemicals in use; (TSCA has no mandate to review chemicals in commerce.)
  3. criteria the EPA would be required to use to prioritize and regulate chemicals; (TSCA has “broad authority and vague priorities,” Charles Auer, who managed chemicals at EPA for years told a House subcommittee.)
  4. judicially enforceable deadlines by which each step in the required reviews and regulatory processes must be completed; (TSCA has no process and no deadlines to review chemicals in commerce.)
  5. minimum number of chemicals EPA must move through the pipeline;
  6. an express requirement for protection of vulnerable populations; (TSCA is silent on such populations.)
  7. a safety standard that explicitly precludes consideration of costs.

Again, since the risks are so low, the only real thing at stake here is how much control we will give EPA over chemicals and related consumer freedom and commerce. Accordingly, here is my take of Denison’s list:

  1. More power for EPA to mandate industry data collection and submission simply means costly research mandates that translate into higher consumer prices, fewer resources for useful R&D, and more useless rodent testing in return for data of little value. 
  2. More mandated government “safety reviews” is a bureaucrat’s job security program. Consumers and business get more expensive bureaucracy and posturing about chemical risks with no benefits. The only ones who gain are environmental activists who want to generate alarmist headlines for direct mail or funding of questionable government research programs.
  3. “Prioritization of chemicals” essentially means placing chemicals on “concern lists” largely based on political priorities and agendas, rather than a need to address serious health risks. Such listings will have adverse market implications for many valuable chemical products, causing yet more dumb retailers to pull products from store shelves, facilitating activists fear campaigns. The final result will be reduced consumer choice and higher prices for inferior products.
  4. Setting judicially enforceable deadlines for EPA is a joke. Government is not good at meeting deadlines—“enforceable” or not--because bureaucrats are highly unaccountable people. You can’t vote them out, you can’t fire them, nor can you levy heavy fines on them. At best, members of Congress can call them to testify at oversight hearings. Big deal. 
  5. Setting a minimum number of chemicals that EPA must “put through the pipeline” means the agency is supposed to take actions whether or not such action is necessary. In reality none of these actions are “necessary,” so this is just another bureaucrat’s job security program and an excuse for more government action.
  6. “Express protection” for “vulnerable” populations is just another green marketing term to push a regulatory agenda that promises to do more harm than good for everyone—including vulnerable populations. Of course we want to be sure babies, the elderly, and the infirm of society are cared for and face no needless risks. But there are no good reasons to believe that vulnerable populations face significant risk from exposure to trace chemicals from consumer products. Exposure is simply too low, even for babies. The real risks will result from needless green regulations that ban essential chemicals needed to make useful and even life-saving products. For example, if greens have their way, EPA would regulate away the chemicals used to make plastic medical devices and supplies that are essential for such things as storing the nation’s blood supply and treating kidney dialysis patients. 
  7. Last, but not least, Dennison applauds the idea that agencies should not consider costs when issuing regulations! The absurdity of this is beyond measure. TSCA’s current mandate that EPA consider costs and apply “the least burdensome” regulations forces the agency to consider all costs—including the costs to human health and life! It has prevented EPA from issuing regulations that could increase overall loss to human life

At this point, all we can do is cross our fingers and hope that the “reformed” law does something good by curbing insane regulations at the state level. But before passage, lawmakers should consider whether they are trading off too much for what will likely be a modest if not overly watered down and useless preemption provision.