How Canada Gets Chemical Regulation Right
In one sense, the environmental activists have it right: The main law governing chemical regulations in the United States is outdated.
The "Safer Chemicals, Healthy Families" coalition, a group of radical environmental organizations including the Natural Resources Defense Council (NRDC), is pushing congress to fundamentally change the Toxic Substances Control Act (TSCA) of 1976. But instead of updating it to streamline burdensome regulations using the latest science, they want it modeled on the heavy-handed European Union system called Registration, Evaluation, Authorization and Restriction of Chemicals, or REACH.
The proposed legislation, known as the Safer Chemicals Act, undermines even President Obama's principles as laid out in his January 18, 2011 Executive Order, "Improving Regulation and Regulatory Review." In the order, the president calls for his agencies to produce a regulatory approach that protects “public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation."
But the Safer Chemicals Act would do no more to protect humans and the environment than the current overly-precautionary law already does. And it would terribly undermine everything the president claims to want to promote, especially American job creation.
The activists' strategy is similar to the old lawyer's adage, “If the facts are on your side, bang on the facts. If the law is on your side, bang on the law. If neither the facts nor the law is on your side, bang on the table.”
The current law isn't good enough for the Safer Chemicals coalition because after applying the science, the law doesn't justify widespread bans on chemicals it wants removed from the marketplace, such as BPA and phthalates. They don't have the law, they don't have the science, so they just bang on the table, arguing that industry is killing us, especially children, with dangerous chemicals and congress must step in to stop the carnage.
The problem is, it isn't true. The level of environmental chemicals we are exposed to is so low, and our chemicals are already so well tested, we aren't at risk from environmental chemicals at all. Not even kids.
If we truly want laws that strike a balance between science-based chemical safety and economic growth we should look to a recent and interesting application of Canada's environmental protection rules.
Environment Canada, our northern neighbor's version of the Environmental Protection Agency, has a chemical review system that, from a process standpoint, is very different both from REACH and from the current and proposed US laws.
Canada's chemicals management program assesses human health and environmental risks of industrial chemicals. If a product under review is deemed toxic, the Minister of the Environment can issue regulations to minimize risk. But an innovative provision of the Canadian law allows that if the underlying risk assessment was flawed and not based on the latest science, industry can petition the minister to order a board review, a group of independent scientists, to take another look at the issue in light of the latest science and data.
That provision had never been applied until 2009, when the Silicones Environmental, Health and Safety Council of North America, a trade association, became the first group to successfully petition for a board review and stop regulations that were justified only by faulty science.
In this case, the chemical under review was siloxane D5, a liquid used to blend and formulate cosmetics and other consumer products, as well as in industrial purposes.
A 2009 Environment Canada report found siloxane D5 to be persistent and toxic to the environment because it was dangerous to aquatic life. The trade association appealed to the Minister of the Environment for a board review as allowed by the statute, because new real-world data allowed for a more robust assessment of the science. As the minister eventually found, the 2009 risk assessment deeming it toxic was based on old computer models, rather than newer, more precise real-world data that since became available.
The environment minister ordered a board review which indeed found that the original assessment was done improperly and, based on the new data, siloxane D5 was actually not dangerous to aquatic life.
What was the new data? It included studies which showed actual levels of siloxane D5 in the water at levels significantly lower than the amount models predicted in the 2009 assessment. Such models and predictions are by their nature worst-case scenarios.
The Board of Review findings were by all accounts more accurate than the earlier report, and a slew of new restrictions on the chemical were now deemed unnecessary. This use of a board of review both protected the environment and was good for (Canadian) jobs.
But under current and proposed United States law, no such board of review would have been possible, despite the new, more accurate data.
And that's just the way the activists want it. They seek to exclude any science which accurately shows lower risk or harm from chemicals. Instead, they prefer using precautionary models which build in layer after layer of safety factors to account for uncertainties either in exposure, as occurred in the siloxane D5 case, or in terms of effect on humans.
As science evolves and methodologies improve, there ought to be opportunities in the regulatory process to incorporate the latest science into risk assessments. That's how the Canadians have it right, but United States law is outdated.
By removing uncertainties, we are able to apply less burdensome regulations while still protecting the environment and human health, using the most up-to-date science, just as President Obama claims to prefer.
The president and Congress should look to the Canadian board of review system, which engages independent scientists, rather than the European REACH approach, to ensure that our chemicals are regulated in a way that protects the environment, our health, and the economy, based on the latest studies and best science.