US Regulations

Lawsuits Against Trump Policies Mark First Year of his Presidency

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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

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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”

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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.

Proposed Budget Cuts to EPA Offer Questionable Benefits

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ruhr-area-882265_640What do President Trump’s proposed budget cuts to the Environmental Protection Agency (EPA) mean? Reduced oversight? Increased chance of toxic and hazardous materials accidents? Premature return of Superfund sites to the community before hazardous waste cleanup has been completed? How can this possibly be beneficial to American businesses when it would be so obviously detrimental to the American people? Business has a long history of reluctance to ensure safety without regulatory oversight. Cuts to EPA programs will mean cuts to worker safety and heightened risk.

In the Trump administration’s preview of the White House’s 2018 budget request to Congress, Budget Blueprint to Make America Great Again, the Environmental Protection Agency’s (EPA) funding would be cut by $2.6 billion, or 31 percent – the largest proposed reduction for any federal agency.

The Budget states: “The President’s 2018 Budget requests $5.7 billion for the Environmental Protection Agency, a savings of $2.6 billion, or 31 percent, from the 2017 annualized CR level.” Savings? That doesn’t sound like a budget cut. Yet that statement is in stark contrast to how the Budget treats the National Aeronautics and Space Administration (NASA) budget directly following. In this instance the document states “The President’s 2018 Budget requests $19.1 billion for NASA, a 0.8 percent decrease from the 2017 annualized CR level, with targeted increases consistent with the President’s priorities.” Why aren’t NASA’s cuts considered a savings?

Further, some 3,200 EPA employees will be laid off to accommodate the budget cuts. So much for President Trump’s promises about creating jobs. Not happening here. 3,200 jobs are not a huge amount in the grand scheme of things, but it certainly is for the ones who will be fired.

The greatest impact of the EPA’s budget cuts is that many programs will be eliminated because the Budget claims that existing State environmental rules and programs already perform the same activities. That’s a rather broad statement. California may well have similar or more restrictive rules, but many states do not, nor can they afford to implement such rules. As a result, the budget cuts effectively eliminate EPA rules and oversight for those states. Further, State regulations typically supplement Federal ones, and do not repeat requirements. In reality, this Budget might cause more problems than it solves.

What the Budget emphatically states is that funding will be discontinued for the Clean Power Plan, international climate change programs, climate change research and partnership programs, and related efforts. It claims to deliver $100 million in savings, yet these programs are designed to deliver future savings across a broad spectrum from reduced health impact to reduced dependence on fossil fuels. The “savings” appear to be a myopic approach that disregards long-term benefits.

The Budget provides Congress and the public with “a view of the president’s priorities.” Fortunately, because Congress writes the final budget, there are no guarantees that all the cuts will be approved.