Lawsuits Against Trump Policies Mark First Year of his Presidency

Almost since the start of President Trump’s time in office, lawsuits have been filed against the policies he is implementing, seeking to cancel or delay Trump’s efforts. In the environmental regulations realm, environmentalists have filed lawsuits that challenge the changes to the recently revised Toxic Substances Control Act (TSCA).

When pressure from industry groups led EPA Administrator Scott Pruitt to delay the effective date of the final TSCA rule until February 2019, eleven state attorneys general threatened to file suit to block the delay.

Now that TSCA is back on track, environmental groups are addressing aspects of TSCA implementation, specifically how the Environmental Protection Agency (EPA) will evaluate chemicals. TSCA requires chemicals to be categorized according to their risk factors before new products can be introduced into the market.

Led by Earthjustice, several environmental groups have filed lawsuits addressing: (1) the methodology EPA will use to set the ground rules for how it will prioritize chemicals for safety review, and (2) exactly how it will evaluate those chemicals.

According to EarthJustice, “After Congress took bipartisan action to make desperately needed updates to our chemical safety laws, the Trump Administration has turned back the clock, leaving families and workers at risk,” said Eve Gartner, an attorney at EarthJustice. “The EPA’s newly adopted rules—overseen by a former high-level chemical industry official with head-spinning conflicts of interest—will leave children, communities and workers vulnerable to dangerous chemicals. This lawsuit is about one thing: holding the Trump EPA to the letter of the law and ensuring it fulfills its mandate to protect the public.”

In a release discussing their position, EarthJustice provides comments from numerous other environmental groups, including the Sierra Club, Environmental Working Group, Environmental Health Strategy Center, and others.

In 2016, Congress amended the chemical law, TSCA, for the first time in 40 years. It now requires EPA to conduct comprehensive risk evaluations of chemicals without regard to cost. But Earthjustice said that the Trump administration has “dramatically weakened” the rules and continues to lead efforts to ensure that the rule is not further diluted.

Industry Lobbies to Slow Implementation of New Ozone Standards

There appears to be some push back against a bill passed by the U.S. House of Representatives concerning Houston’s air quality initiatives that strives to delay the rule. This may be taken out of context, but here’s a direct quote from a letter obtained by the Houston Public Media:

The American Chemistry Council’s Anna Burhop welcomed the House of Representatives’ advancing a bill that would delay federal ozone rules. “From a business perspective, you don’t want to go ahead and jump into reformulating all of your products, or putting really expensive controls on your plants, when you don’t know whether that’s necessary or not,” she said.”

This statement ignores the many years of increased regulation that have pointed the direction of pollution management to manufacturers since the publication of Carson’s Silent Spring. It’s way past time to implement better hazardous substance controls to ensure a cleaner, safer environment. Complaining about costs is disingenuous; are the costs to do business more important than the health costs of nearby residents?

Facilities that handle, manage, produce and release hazardous materials must do so in a responsible way. It’s because they haven’t that Environmental Protection Agency (EPA) regulations are in place. As knowledge grows concerning the properties of those substances, regulations become stricter. As explosions, accidental releases, and spills occur as a result of lax hazmat management, regulations become stricter. The point of the Chemical Safety Board (CSB) is to review such incidents and help develop better controls, which they have done admirably.

If manufacturers don’t like regulations, they can do a better job of implementing controls to reduce emissions. Houston often looks like 1970’s Los Angeles now – a toxic soup that California imposed additional regulations to eliminate.

TSCA Inventory Reset Rule to Rely on “Best Available Science”

In the wake of the release of the watered-down TSCA rules, the door has been left open for industry to continue with unsafe chemical management processes. The use of “best available science” to determine a chemical substance’s impact will not apparently be determined by traditional risk assessment methodology – methodology that was typically inadequate as it rarely accounted for the multiple uses and sources of exposure to a given chemical. The proposed draft rules attempted to change this by requiring the EPA to conduct broad reviews of chemicals across their full lifecycles and account for their known, intended, and reasonably foreseen uses. Unfortunately, the final rules allow the EPA to examine only certain use of and exposures to a chemical, with minimal explanation of how these exclusions will be determined. In other words, the final rules allow big loopholes and continued chemical exposures to known hazardous substances. Certainly not the best available science.

Interestingly, the rules on reporting have been “reset” so that all manufacturers and Importers of chemicals for the past 11 years are now subject to a new TSCA reporting requirement under which reports will be due six months after the final rule is published. Known as the TSCA Inventory Reset, it requires the EPA to determine which of the 85,000 chemical substances in the TSCA Inventory are actually active in commerce. To this end, the TSCA Inventory Reset rule sets forth a process to designate chemical substances on the TSCA Inventory as either “active” or “inactive” based on notifications from manufacturers and processors. After the initial Inventory Reset is complete, companies that intend to manufacture or process an inactive substance must notify EPA prior to commencing manufacturing or processing. Once EPA has these reports, it will compile an interim list of active chemical substances.

It’s a first step, but the rule is weak. It only requires reporting of “chemical substances subject to “commercial activity designation.” It does not require reporting for chemicals where the EPA already has equivalent notice of active status. It does not require reporting for chemicals added to the TSCA Inventory list during the 10-year “lookback” period. The exemptions are many. What’s not really addressed is whether the best available science will be used by chemical manufacturers and importers as they compile their reports, particularly since those reports can exclude numerous criteria, such as prior loss of records that provide important information. Excuse me for being cynical, but records are lost all the time when employees leave or are laid off and the ones left can’t find the information. So best available science can deteriorate into best available guess.

TSCA Rules Weakened Under Trump-Pruitt

The Environmental Protection Agency (EPA) is morphing into the Environmental Un-Protection Agency. Or perhaps the Environmental Destruction Agency. Call it what you will, rolling back rules that have taken decades to implement is a move in the wrong direction.

These are the first rules issued since Scott Pruitt, a former chemical industry lobbyist, took charge of the EPA. What do they include? Loopholes that disregard exposures to the most vulnerable and susceptible populations which the Toxic Substances Control Act (TSCA) sought to protect.

What began as an effort to update existing inadequate rules has deteriorated into weak versions that favor the chemical industry. The initial draft version of these rules were the result of extensive public consultation that included chemical industry manufacturers, retailers, health impacted groups, medical professionals, and public interest groups. Everyone had a say. The draft rules had bipartisan support from Congress and the Obama White House and were applauded by health experts for creating a rigorous process to identify and control harmful exposures to toxic chemicals linked to significant health threats link cancer, reproductive disease and learning disabilities.

Despite these advances, the rules that have been released were revised and scaled back without public input and do not reflect the input of the various groups. They only reflect the chemical industry’s objectives. So sad; this was not what the Frank R Lautenberg Chemical Safety Act set out to achieve.