'Reforming' the Toxic Substances Control Act
As early as this week, the Senate is slated to take up a bill to reform the Toxic Substances Control Act. Supposedly, the proposal has enough bipartisan support to sustain a filibuster. So are the proposed changes to TSCA good or bad for consumers? There are plenty of reasons to be skeptical.
As I have explained numerous times, the current TSCA has what is probably the best standard for evaluating environmental risks that the U.S. has on the books. In particular, one provision requires the Environmental Protection Agency to apply the "least burdensome" rule necessary to achieve safety goals, which holds the agency accountable.
This provision prevents the agency from issuing regulations that are likely to do more harm than good. For example, it prevented a proposed ban of asbestos in automobile brakes, a usage that has not been shown to affect human health. A court held the ban would likely have led to a net loss of life by increasing highway fatalities.
You would think that a regulatory policy that prevents needless deaths is a good thing. Yet both House and Senate TSCA-reform proposals would eliminate the "least burdensome" requirement. The new law would also give EPA lots of power to demand expensive data collection and impose needless bureaucratic red tape on industry, and charge business high fees on top of it all.
But the chemical industry is willing to take this medicine in exchange for a provision that may partly preempt a host of utterly insane state chemical regulations, such as those that will emerge in California as it continues implementation of its "green chemistry" law. The industry's position is understandable. After all, in addition to these laws' being bad in themselves, it's not easy to do business when you have to comply with 50 different sets of laws.
But is it really worth the gamble? The preemption provisions could eventually be rendered meaningless, while business sacrifices the already tested TSCA standard. The bill contains provisions that will allow EPA to give states "waivers" so that they can avoid preemption altogether. How EPA will apply and interpret these provisions is a big question mark.
The current legislation recently cleared a major hurdle. The bill's main Democratic sponsor, Sen. Tom Udall, has negotiated some changes to the legislation to gain support from two more Democrats, bringing total Senate support up to 60, enough to prevent a filibuster led by Barbara Boxer, who remains critical of the bill.
If the Senate bill has any redeeming qualities left after floor passage, it will likely suffer yet more assaults in conference, as it must be reconciled with an even less desirable bill that passed the U.S. House of Representatives last June. That bill also has a preemption provision, but it's notably weaker, requiring the EPA to finalize rules on specific chemicals before state laws are preempted for those chemicals. Let's face it: Government processes are notoriously slow, and it's not uncommon for agencies to miss statutory deadlines. EPA may amass power while businesses wait years and even decades before they gain preemption for any chemicals.
There is one thing we can be sure about. TSCA "reform" won't make us any safer because the public risks TSCA regulates are by and large insignificant: those posed by trace chemicals found in consumer products. Industry itself already has systems in place to address health risks, merely because there's no in gain poisoning your customers.
The most unfortunate part about this entire debate is the potential for real harm. TSCA reform promises empower EPA to go after valuable chemicals that have important public health and safety benefits that could be lost. For example, if regulators undermine the use of BPA-based resins for food cans, which are used to prevent pathogen development, we might see increased food-borne illnesses. If regulators ban certain flame retardants, we could see more fire-related deaths. And bans on preservatives in cosmetics can translate into product spoilage and increased skin irritation and infections.
These are the real costs of dumb regulatory powers.
Angela Logomasini is a senior fellow with the Competitive Enterprise Institute, a free-market public-policy group in Washington, D.C.