<h4><em>Under Review</em></h4>
<p>Multiple federal and state statutes, as well as foreign regulations and international treaties, regulate <a href="http://www.epa.gov/lawsregs/topics/#toxics&quot; target="_blank">toxic substances</a> in order to protect the environment and human health. The <a href="#tsca">Toxic Substances Control Act</a> (TSCA) regulates chemical substances that are manufactured, distributed, used, or disposed of in the United States. The <a href="#fifra">Federal Insecticide, Fungicide, and Rodenticide Act</a><a href="#_msocom_2"></a> (FIFRA) requires registration and licensing of <a href="http://www.epa.gov/lawsregs/topics/#pest&quot; target="_blank">pesticides</a> before they can be manufactured, sold, or used. Most of the <a href="#state-and-tribal-regulations">fifty states</a> in the U.S. have enacted laws regulating one or more toxic substances, although they differ tremendously in how and what they regulate. Additionally, there are <a href="#international-regulation">international</a><a href="#_msocom_4"> </a>conventions and treaties that focus on the regulation of toxic substances. <a href="#reach">The European Union has enacted a statute</a> entitled the <a href="http://ec.europa.eu/environment/chemicals/reach/reach_intro.htm">Regist…, Evaluation, Authorisation and Restriction of Chemical Substances</a> (REACH) to regulate chemicals.</p>
<p>Watch and download materials from the ELI Summer School Seminar <a href="http://www.eli.org/events/eli-summer-school-series-2014-law-policy-prod… and Policy of Products Regulation</a></p>
<h3><a name="tsca"></a>TSCA</h3>
<p>Congress passed the <a href="http://elr.info/legislative/federal-laws/toxic-substances-control-act">… Substances Control Act</a> in 1976 in response to evidence and concerns that toxic chemicals endanger public health and the environment. It was enacted “to prevent <a href="#" title="Rep. No. 698, 94th Cong., 2d Sess. 1 (1976), reprinted in 1976 U.S.C.C.A.N. 4491, 4491.">unreasonable risks of injury</a> to health or the environment associated with the manufacture, processing, distribution in commerce, use, or disposal of chemical substances.”</p>
<p>TSCA regulates both chemical substances and combinations of chemical substances (mixtures). It defines “<a href="#" title="TSCA § 3(2)(A), 15 U.S.C. § 2602(2)(A).">chemical substance</a><a href="#_msocom_8"></a>” as “any organic or inorganic substance of a particular molecular identity.” This does not include <a href="#" title="TSCA defines “mixture” as “any combination of two or more chemical substances if the combination does not occur in nature and is not, in whole or in part, the result of a chemical reaction . . . .” Id. § 3(8). Because of this exclusion, mixtures are not subject to the premanufacture notice requirements, but are subject to other provisions of the statute (discussed below).">mixtures</a> and <a href="#" title="TSCA § 3(2)(B), 15 U.S.C. § 2602(2)(B).">six substances</a> that are regulated by other statutes including pesticides, tobacco, and food.</p>
<p>Many of TSCA’s requirements apply to persons who “manufacture” or “process” chemical substances. TSCA defines “<a href="#" title="TSCA § 2(7), 15 U.S.C. § 2601(7).">manufacture</a>” as “to import into the customs territory of the United States . . . , produce, or manufacture” and defines “<a href="#" title="TSCA § 2(10), 15 U.S.C. § 2601(10).">process</a>” as “the preparation of a chemical substance or mixture, after its manufacture, for distribution in commerce . . . .”</p>
<p>For an in-depth explanation of TSCA, see Carolyn Hathaway, <a href="http://www.eli.org/eli-press-books/tsca-deskbook%252C-second-edition">T… Deskbook, 2d ed.</a> Listen to and download materials from the ELI Seminar series: <a href="http://www.eli.org/events/key-issues-reform-toxic-substances-control-ac… Issues for Reform of TSCA</a> to learn about the major issues to be addressed in updating TSCA, which has not been significantly reworked since 1976. Read about TSCA reform efforts at Lynn Bergeson, <a href="http://elr.info/news-analysis/40/10243/epas-action-plans-signal-new-cha… Action Plans Signal a New Chapter for TSCA While Informing the Future Legislative Debate on Chemicals</a>, Brett Oberst, <a href="http://elr.info/news-analysis/40/10123/obama-and-epa-take-tsca-reform">… and EPA Take on TSCA Reform</a>,” and Richard Denison, <a href="http://elr.info/news-analysis/39/10020/ten-essential-elements-tsca-refo… Essential Elements in TSCA Reform</a>.</p>
<h5><a name="inventory"></a>Inventory</h5>
<p>Under TSCA, the Environmental Protection Agency (EPA) was <a href="#" title="TSCA § 8, 15 U.S.C. § 2609.">required</a> to establish an initial <a href="http://www.epa.gov/oppt/existingchemicals/pubs/tscainventory/howto.html…; target="_blank">Inventory</a> of all chemical substances manufactured or processed in the United States within three years before the effective date of the statute. EPA updates this Inventory periodically to include additional chemicals and maintains both a public Inventory and a confidential Inventory. EPA will not disclose substances on the confidential Inventory unless someone has demonstrated a bona fide intent to manufacture the substance. Any chemical that is not listed on the Inventory is considered a “new chemical substance.”</p>
<h5><a name="new-chemicals-and-uses"></a>New Chemicals and Uses</h5>
<p>TSCA <a href="#" title="TSCA § 5(A), 15 U.S.C. § 2606(A).">prohibits</a><a href="#_msocom_14"> </a>the manufacture of a “<a href="#" title="A “new chemical substance” is “any chemical substance which is not included in the chemical substance list compiled and published” by EPA pursuant to § 8(b).">new chemical substance</a>” or the manufacture or processing of an existing chemical substance for a “<a href="#" title="A “significant new use” means that EPA has promulgated a regulation that identifies the uses for a particular chemical substance or category of chemical substances.">significant new use</a>” unless a premanufacture notice (PMN) or significant new use notice (SNUN) is submitted to the EPA at least 90 days before the commencement of such manufacture or processing. If the substance in listed on the Inventory and there is not a regulation identifying its uses, then the manufacturer or processor is not required to submit a SNUN for a chemical with a significant new use. If EPA does not object or request additional information, then the person submitting the notice is free to manufacture or process the chemical substance 90 days after the EPA has received PMN or SNUN. EPA describes this process in <a href="http://www.epa.gov/oppt/newchems/index.htm&quot; target="_blank">detail</a>.</p>
<h5><a name="new-chemical-review"></a>New Chemical Review</h5>
<p>The persons submitting the PMN or SNUN must also <a href="#" title="TSCA § 5(B), 15 U.S.C. § 2606(B).">submit</a><a href="#_msocom_17"> </a>all relevant test data in their possession and describe any other data they know about the chemical substance. They are not required to submit a specified, minimum data set. They may, however, be required to develop additional mandatory test data if the substance is subject to TSCA’s <a href="http://www.epa.gov/oppt/chemtest/pubs/sct4rule.html&quot; target="_blank">test rules</a> or if the substance is included on the list of substances that EPA determined may present an unreasonable risk or injury to health or the environment.</p>
<p>There are three methods by which EPA may extend the premanufacture review period and postpone manufacture or processing beyond the 90-day review period. EPA may, for “good cause,” <a href="#" title="TSCA § 5(C), 15 U.S.C. § 2606(C).">extend</a> the initial review period for an additional 90 days, but the extensions and reasons for the extension must be published in the Federal Register. Next, EPA may issue a “<a href="#" title="TSCA § 5(E), 15 U.S.C. § 2606(E).">proposed order</a>” prohibiting or limiting the manufacturing, processing, distribution, use, or disposal of the substance when EPA determines that there is insufficient data to permit a “reasoned evaluation” of the substance’s health and environmental effects or when the substance may present a substantial risk of injury to health or the environment or there will or may be substantial human health or environmental exposure to the substance. EPA would likely then issue a SNUR that applies to all other regulated parties. Finally, EPA can <a href="#" title="TSCA § 5(F), 15 U.S.C. § 2606(F).">prohibit or restrict</a> a substance’s manufacture, distribution, processing, use or disposal if it has a “reasonable basis to conclude” that the substance is unsafe.</p>
<p>Nanotechnology, the creation and alternation of substances at the nanometer scale, offers significant challenges to the traditional chemical regulatory scheme. How should consumers, companies, and agencies treat traditional chemicals that have been modified on a nanoscale? See ELI’s <a href="http://www.eli.org/nanotechnology-program">Nanotechnology Program</a> for resources on this important topic.</p>
<h5><a name="test-rules"></a>Test Rules</h5>
<p>EPA may promulgate <a href="http://www.epa.gov/oppt/chemtest/pubs/sct4rule.html&quot; target="_blank">test rules</a> that require manufacturers or processors to test chemicals or mixtures identified by the Agency for the purpose of assessing their potential risks to human health or the environment. EPA must <a href="#" title="TSCA § 4(A), 15 U.S.C. § 2605(A).">require testing</a> of any chemical substance or mixture if EPA finds that: (1) the manufacture, distribution in commerce, processing, use, or disposal of a chemical substance or mixture, or that any combination of such activities, may present an unreasonable risk of injury to health or the environment, there is insufficient data or experience, and testing is necessary to develop such data or (2) the chemical substance or mixture is or will be produced in substantial quantities and it enters or may reasonably be anticipated to enter the environment in substantial quantities or there is or may be significant or substantial human exposure to such substance or mixture, there is insufficient data or experience, and testing is necessary to develop such data.</p>
<h5><a name="existing-chemicals"></a>Existing Chemicals</h5>
<p>TSCA also regulates <a href="http://www.epa.gov/oppt/existingchemicals/&quot; target="_blank">existing chemicals</a>. EPA has the authority to <a href="#" title="TSCA § 6(A), 15 U.S.C. § 2607(A).">restrict or ban</a> the manufacture, processing, or distribution in commerce of chemical substances or mixtures upon showing that it “presents or will present an unreasonable risk of injury to health or the environment.” EPA has shied away from using this authority after a negative outcome in <em><a href="http://openjurist.org/947/f2d/1201/corrosion-proof-fittings-v-environme… Proof Fittings v. U.S. Environmental Protection Agency</a></em>, in which the court refused to allow EPA to ban asbestos.</p>
<p>For a discussion of one chemical manufacturer’s management of an existing chemical upon receipt of new data, see Chris Higgins, <a href="http://elr.info/news-analysis/33/10062/3m-and-withdrawal-pfos-tsca-prod… and the Withdrawal of PFOS: TSCA, Product Liability, and the Precautionary Principle</a>.</p>
<h5><a name="reporting-and-recordkeeping"></a>Reporting and Recordkeeping</h5>
<p>TSCA also provides EPA with significant authority to require companies to keep and maintain records and report information regarding chemical substances and their health and environmental effects. This is a key element of TSCA. TSCA requires <a href="#" title="TSCA § 8, 15 U.S.C. § 2609.">reporting and recordkeeping</a><a href="#_msocom_23"> </a>concerning <a href="http://www.epa.gov/opptintr/chemtest/pubs/sect8a.html&quot; target="_blank">chemical use and exposure</a>, allegations of <a href="http://www.epa.gov/opptintr/chemtest/pubs/sect8c.html&quot; target="_blank">adverse health and environmental effects</a>, <a href="http://www.epa.gov/opptintr/chemtest/pubs/sect8d.html&quot; target="_blank">unpublished</a> health and safety studies, and information “which reasonably supports the conclusion that such substance or mixture presents a <a href="http://www.epa.gov/opptintr/tsca8e/index.html&quot; target="_blank">substantial risk of injury</a> to health or the environment.”</p>
<h5><a name="tsca-enforcement"></a>Enforcement</h5>
<p>There are various enforcement mechanisms by which the EPA may regulate TSCA. <a href="#" title="TSCA § 16, 15 U.S.C. § 2617.">Civil penalties</a> up to $25,000 (adjusted annually for inflation) per day may be assessed. Civil <a href="#" title="TSCA § 16(a)(3), 15 U.S.C. § 2617(a)(3).">administrative proceedings</a> before an administrative law judge are available for respondents who want to contest violations alleged by EPA or the amount of the civil penalty. <a href="#" title="TSCA § 16(b), 15 U.S.C. § 2617(b).">Criminal penalties </a>may be imposed for knowing and willful violations of TSCA.</p>
<h3><a name="fifra"></a>FIFRA</h3>
<p>The <a href="http://elr.info/legislative/federal-laws/federal-insecticide-fungicide-… Insecticide, Fungicide and Rodenticide Act</a> (FIFRA), originally enacted in 1947, regulates the manufacture, sale, and use of chemical and biological pest controls and substances that control plant growth. The Act includes requirements for <a href="#labeling">labeling, registration, and recordkeeping</a> of <a href="http://www.epa.gov/lawsregs/topics/pesticides.html">pesticides</a&gt;, and also provides for the regulation and <a href="#fifra-enforcement">enforcement</a><a href="#_msocom_29"> </a>of those requirements. All pesticides sold or distributed in the United States must be <a href="http://www.epa.gov/pesticides/regulating/index.htm&quot; target="_blank">licensed by EPA</a> under FIFRA.</p>
<p>For a detailed discussion of FIFRA, see Ken Weinstein, <a href="http://www.eli.org/eli-press-books/pesticide-regulation-deskbook">Pesti… Regulation Deskbook</a>. For a discussion of 1998 amendments to FIFRA, see Ken Weinstein, <a href="http://elr.info/news-analysis/28/10555/food-quality-protection-act-new-… Food Quality Protection Act: A New Way of Looking at Pesticides</a>.</p>
<p>FIFRA defines a <a href="#" title="FIFRA §2(u), 7 U.S.C. §136(u).">pesticide</a><a href="#_msocom_30"> </a>as “(1) any substance or mixture of substances <em>intended</em> for preventing, destroying, repelling, or mitigating any <a href="#" title="FIFRA defines a pest as “(1) any insect, rodent, nematode, fungus, weed or (2) any other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other micro-organism (except viruses, bacteria, or other micro-organisms on or in living man or other living animals) which the Administrator [of EPA] declares to be a pest . . . .” Id. § 2(t).">pest</a><a href="#_msocom_31"></a>, (2) any substance or mixture of substances <em>intended </em>for use as a plant regulator, defoliant, or desiccant, and (3) any nitrogen stabilizer . . . .” EPA uses <a href="#" title="40 C.F.R. § 152.15.">three factors</a> to determine whether a substance is intended to be a pesticide: (1) whether the person who sells or distributes the product claims that is has a pesticidal purpose or use or it contains an active ingredient that can be used to manufacture a pesticide; (2) whether the substance contains an active ingredient and has no commercially valuable use other than for a pesticidal purpose or for the manufacture of a pesticide; and (3) whether the person who distributes or sells the substance has actual or constructive knowledge that the substance will be used or is intended for a pesticidal purpose. EPA has created an <a href="#" title="53 Fed. Reg. 15,952, 19,954 (May 4, 1988).">objective standard</a> for its regulation of FIFRA, meaning that the Agency will not impose penalties on the producer of a non-pesticide product if others make claims that the product has a pesticidal purpose.</p>
<p>FIFRA’s regulatory process is examined in detail in the Law of Environmental Protection, Ch. 18.</p>
<h5><a name="registration"></a>Registration</h5>
<p>Each pesticide sold or distributed in the United States must be <a href="http://www.epa.gov/pesticides/regulating/registering/&quot; target="_blank">registered with EPA</a>. Any sale or distribution of a pesticide that is unregistered is prohibited. Under FIFRA, the Administrator shall <a href="#" title="FIFRA §3(c)(5), 7 U.S.C. §136a(c)(5).">register</a> a pesticide if it performs as claimed and “when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment.” EPA will not register a pesticide unless the registrant has obtained a <a href="http://www.epa.gov/pesticides/regulating/tolerances.htm&quot; target="_blank">pesticide residue tolerance</a> or exemption from a tolerance under the <a href="#" title="21 U.S.C. §§301-395.">Federal Food, Drug and Cosmetic Act</a> as amended by the Food Quality Protection Act.</p>
<p>During the registration process, the Administrator will classify pesticides either as general use or <a href="#" title="FIFRA §3(d)(1)(C), 7 U.S.C. §136a(d)(1)(C).">restricted use pesticides</a>. The Administrator will classify a pesticide as <a href="http://www.epa.gov/pesticides/regulating/restricted.htm&quot; target="_blank">restricted use</a> pesticide if it may generally cause “unreasonable adverse effects on the environment” but may be used for specific purposes. In addition to the requirement to register pesticides used or sold in the U.S., producers of pesticides must register the <a href="http://www.epa.gov/ttn/atw/pest/pestpg.html&quot; target="_blank">establishments</a> producing pesticides and file annual reports with EPA.</p>
<p>For a discussion of the myriad testing issues that arise under FIFRA, see Lynn Bergeson, <a href="http://elr.info/news-analysis/35/10141/fifra-chemical-testing-issues">F…—Chemical Testing Issues</a>.</p>
<h5><a name="labeling"></a>Labeling</h5>
<p>FIFRA also sets forth extensive requirements for the <a href="http://www.epa.gov/pesticides/regulating/labels/product-labels.htm&quot; target="_blank">labeling</a> and packaging of pesticides. Registered pesticides must have an EPA-approved <a href="#" title="40 C.F.R. §156.10(a)(1).">label</a>, which includes the name of the product, the name of the producer, the net contents, the registration numbers for the product and for the producing establishment, an ingredient statement, warning or precautionary statements, directions for use, and the use classification of the product.</p>
<h5><a name="end-users"></a>End-Users</h5>
<p>End-users of pesticides are also regulated under FIFRA. First, any person is <a href="#" title="FIFRA §12(a)(2)(G), 7 U.S.C. §136j(a)(2)(G).">prohibited</a> from “us[ing] any registered pesticide in a manner inconsistent with its labeling.” States have authority to establish requirements for “<a href="#" title="FIFRA defines a “maintenance applicator” as “any individual who, in the principal course of such individual’s employment, uses, or supervises the use of, a pesticide not classified for restricted use.” Id. § 2(jj).">maintenance applicators</a>” and <a href="#" title="A “service technician” is “any individual who uses or supervises the use of pesticides . . . for the purpose of providing structural pest control or law pest control on the property of another for a fee.” Id. § 2(kk).">service technicians</a>. If a pesticide has been classified as a restricted-use pesticide, usually only certified applicators (those authorized under FIFRA) or those under their supervision may use the pesticide. Finally, there are <a href="http://www.epa.gov/oppfead1/safety/workers/amendmnt.htm&quot; target="_blank">worker protection requirements</a> under FIFRA that implement <a href="http://www.epa.gov/pesticides/health/worker.htm&quot; target="_blank">worker protection</a> standards and require worker protection information on labels.</p>
<h5><a name="reporting"></a>Reporting</h5>
<p>After registration, an applicant is required to <a href="#" title="FIFRA §6(a)(2); 21 U.S.C. 136d(a)(2).">report</a><a href="#_msocom_42"> </a>information to EPA if the applicant learns any new information about <a href="http://www.epa.gov/pesticides/fifra6a2/&quot; target="_blank">unreasonable adverse effects</a> of the pesticide or other <a href="http://www.epa.gov/pesticides/health/reporting.htm&quot; target="_blank">harmful effects</a> of registered products.</p>
<h5><a name="fifra-enforcement"></a>Enforcement</h5>
<p>FIFRA provides various enforcement mechanisms for <a href="http://www.epa.gov/compliance/civil/fifra/fifraenfprog.html&quot; target="_blank">EPA</a>. Similar to other federal environmental statutes, EPA has largely delegated enforcement authority of FIFRA to the <a href="http://npic.orst.edu/reg/state_agencies.html&quot; target="_blank">states</a>. EPA uses a number of enforcement mechanisms, most notably civil penalties. Registrants, commercial applicators, wholesalers, dealers, retailers, or other distributors who violate any FIFRA provision are subject to administrative <a href="#" title="FIFRA §14; 21 U.S.C. 136l.">civil penalties</a> of not more than $5,500 (adjusted annually for inflation) for each violation. EPA may also <a href="#" title="FIFRA §13; 21 U.S.C. 136k.">issue</a> stop sale, use, or removal orders, or may seize the violating pesticide or device. Finally, FIFRA establishes <a href="#" title="FIFRA §14; 21 U.S.C. 136l.">criminal penalties</a> for those who knowingly violate FIFRA. There is no citizen suit provision found in FIFRA, so citizens have no private cause of action against violators of FIFRA.</p>
<h3><a name="state-and-tribal-regulations"></a>State and Tribal Regulations</h3>
<p>States and tribes throughout the U.S. have enacted <a href="http://chemicalspolicy.org/chemicalspolicy.us.state.database.php&quot; target="_blank">laws and regulations</a> to control the use of toxic substances. These provisions vary depending on the state or tribe. Many regulations address specific chemicals, while others focus on pollution prevention, reducing the amount of toxic chemicals, or requiring registration or licensing. Because of the vast differences in the toxic substance laws of each state, this summary will focus on two states with multiple regulations that cover a wide range of the types of provisions seen in the states.</p>
<p>For a discussion of tribal pesticide programs, see Jane Kloeckner, <a href="http://elr.info/news-analysis/42/10057/hold-tribal-sovereignty-establis… On to Tribal Sovereignty: Establishing Tribal Pesticide Programs That Recognize Inherent Tribal Authority and Promote Federal-Tribal Partnerships</a>.</p>
<h5><a name="california"></a>California</h5>
<h6><a name="proposition-65"></a>Proposition 65</h6>
<p>California enacted the <a href="http://oehha.ca.gov/prop65/law/P65law72003.html&quot; target="_blank">Safe Drinking Water and Toxic Enforcement Act</a> in 1986 to promote clean drinking water and protect and inform the public about toxic chemicals. Each year the state publishes a list of chemicals known to cause cancer or birth defects or other reproductive harm. The <a href="http://oehha.ca.gov/prop65/prop65_list/Newlist.html">list</a&gt; now includes about 800 chemicals.</p>
<p>For one perspective on the efficacy of Prop 65, see Clifford Rechtschaffen, <a href="http://elr.info/news-analysis/35/10850/continued-success-proposition-65… Continued Success of Proposition 65 in Reducing Toxic Exposures</a>.</p>
<p>Once a chemical is listed, businesses must <a href="http://oehha.ca.gov/prop65.html&quot; target="_blank">notify</a> Californians about significant amounts of listed chemicals in the products they manufacture or release into the environment. The businesses must also provide <a href="http://oehha.ca.gov/prop65/law/pdf_zip/RegsArt6.pdf&quot; target="_blank">warning</a> before knowingly or intentionally exposing people to the chemical, although <a href="http://oehha.ca.gov/prop65/getNSRLs.html&quot; target="_blank">safe harbor levels</a> have been established for some substances. This warning can be given in a number of ways including labeling products, posting signs, or publishing notices in the newspaper.</p>
<h6><a name="chemical-specific-regulations"></a>Chemical-Specific Regulations</h6>
<p>California has enacted multiple laws and regulations dealing with specific chemicals. For example, it has set <a href="http://arb.ca.gov/toxics/compwood/compwood.htm&quot; target="_blank">formaldehyde emissions standards</a> for various kinds of wood that is sold, supplied, or offered for sale in California. California also restricts <a href="http://www.dtsc.ca.gov/LeadInJewelry.cfm&quot; target="_blank">lead in jewelry</a> by requiring testing and submission of technical information. Similarly, the state has prohibited the use of lead in water pipes. The state also restricts or prohibits the use of <a href="http://www.dtsc.ca.gov/HazardousWaste/Mercury_Therm_Act.cfm&quot; target="_blank">mercury in thermostats</a>, the amount of <a href="http://www.dtsc.ca.gov/PollutionPrevention/ToxicsInProducts/GlassBeads…; target="_blank">lead and arsenic in certain glass beads</a>, and the sale of toys made with bisphenol-A or phthalates.</p>
<h6><a name="green-chemistry"></a>Green Chemistry</h6>
<p>California’s <a href="http://www.dtsc.ca.gov/pollutionprevention/greenchemistryinitiative/ind…; target="_blank">Green Chemistry Initiative</a> focuses on reducing or eliminating the use of hazardous materials. As part of the Initiative, DTSC has proposed regulations, entitled <a href="http://www.dtsc.ca.gov/LawsRegsPolicies/upload/SCPA-Regs_APA-format-9-0…; target="_blank">Safer Consumer Product Alternatives</a>, to identify and prioritize chemicals, require alternative assessments for those chemicals, and impose requirements for those alternatives. The Initiative is also in the process of implementing a <a href="http://www.dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/upl…; target="_blank">Toxics Information Clearinghouse</a>, to be operated by the Office of Environmental Health Hazard Assessment, which will provide information on toxic chemicals to the public.</p>
<h6><a name="pesticide-regulation"></a>Pesticide Regulation</h6>
<p>The California Department of Pesticide Regulation oversees <a href="http://www.cdpr.ca.gov/&quot; target="_blank">pesticide regulation</a> in California, which requires <a href="#" title="CAL. CODE REGS. tit. 3, §§ 6000–6795 (2010). ">licensing and registration</a> for those using pesticides. Any person who advertises, solicits, or operates as a pest control business must obtain a valid pest control business <a href="http://www.cdpr.ca.gov/docs/license/liccert.htm&quot; target="_blank">license</a>. The person must also register with the department for the current calendar year to advertise, solicit, or operate as a pest control business in any county. The registrant must keep and maintain a record of each property treated that shows all information required by the director or commissioner and shall report that information as required.</p>
<p>California also requires pesticides to be <a href="http://www.cdpr.ca.gov/docs/registration/regmenu.htm&quot; target="_blank">registered</a> before the pesticide is offered for sale. Furthermore, every registrant must label the product with information related to the product’s registration.</p>
<h5><a name="massachusetts"></a>Massachusetts</h5>
<h6><a name="toxics-use-reduction-act"></a>Toxics Use Reduction Act</h6>
<p>Massachusetts enacted the <a href="http://www.mass.gov/dep/toxics/laws/statnew.pdf&quot; target="_blank">Toxics Use Reduction Act</a> (TURA) in 1989 to <a href="http://www.mass.gov/dep/toxics/toxicsus.htm&quot; target="_blank">require</a> Massachusetts companies that use large quantities of specific toxic chemicals to evaluate and plan for pollution prevention opportunities, implement the opportunities, and measure and report their results annually. The Act aims, in part, to reduce the generation of toxic waste by 50% (which was met by 1998) and establish toxics use reduction as the preferred means for achieving compliance with other federal and state laws and regulations. Massachusetts amended TURA in 2006 by revising the reporting and planning requirements and establishing categorization of chemicals so that low hazard chemicals would have different reporting requirements and fees. Massachusetts also produces an <a href="http://www.mass.gov/dep/toxics/tura/turadata.htm">annual report</a> on the use of toxic chemicals in the state.</p>
<p>For a discussion of similar legislation in Oregon, see Larry Edelman, Oregon's <a href="http://elr.info/news-analysis/20/10093/oregons-toxics-use-reduction-and… Use Reduction and Hazardous Waste Reduction Act: A Bellwether for Pollution Prevention Regulation</a>.</p>
<h3><a name="international-regulation"></a>International Regulation</h3>
<p>Chemicals and products containing potentially toxic substances are international commodities. As a result, at least two important treaties regulate certain chemicals—the POPs and PIC treaties, while other treaties govern wastes, air pollution or specific chemical compounds, such as <a href="http://ozone.unep.org/new_site/en/index.php&quot; target="_blank">ozone depleting substances</a>. In addition, the <a href="http://www.oecd.org/topic/0,3699,en_2649_34365_1_1_1_1_37465,00.html&qu…; target="_blank">Organization for Economic Cooperation and Development</a> plays an important role in standardizing<a href="http://www.oecd.org/topic/0,3699,en_2649_34377_1_1_1_1_37465,00.html&qu…; target="_blank"> chemical testing</a> internationally. The European Union’s REACH chemical regulation program and may be setting the standard for chemical regulatory systems internationally.</p>
<h5><a name="stockholm-convention-persistent-organic-pollutants"></a>Stockholm Convention on Persistent Organic Pollutants</h5>
<p>The <a href="http://chm.pops.int/Convention/ConventionText/tabid/2232/language/en-US…; target="_blank">Stockholm Convention on Persistent Organic Pollutants</a> (POPs), <a href="http://chm.pops.int/default.aspx&quot; target="_blank">administered</a> by the United Nations Environment Program (UNEP), is a global treaty to protect human health and the environment from chemicals that: (1) remain intact in the environment for long periods of time; (2) become widely distributed; (3) accumulate in the fatty tissue of humans and wildlife; and (4) have adverse effects to human health and the environment. The treaty entered into force in 2004 and requires parties to take measures to eliminate or reduce the release of <a href="http://chm.pops.int/Convention/ThePOPs/tabid/673/language/en-US/Default…; target="_blank">POPs</a>. By April 2011, there were 173 <a href="http://chm.pops.int/Countries/StatusofRatification/tabid/252/language/e…; target="_blank">parties</a> to the convention. The United States has signed but not ratified the treaty. Initially there were twelve POPs (the “dirty dozen”) recognized by the treaty, but nine additional POPs were recognized at the fourth meeting of the parties.</p>
<p>Parties must take measures to reduce or eliminate <a href="http://chm.pops.int/Convention/ThePOPs/tabid/673/language/en-US/Default…; target="_blank">POP</a>s releases into the environment from intentional production and use. These measures include prohibiting or taking other steps to eliminate production and use of those chemicals in Annex A. They also include requirements for importing and exporting chemicals listed in both Annex A and B. Annex A includes chemicals that the Convention aims to eliminate while Annex B includes chemicals that should be restricted. Next, the Convention requires parties to develop an action plan to identify, characterize, and address the release of chemicals listed in Annex C, which lists chemicals that are unintentionally produced. Similarly, the Convention requires measures to be taken to reduce or eliminate releases from stockpiles and wastes. Parties can make proposals to add chemicals to the Annexes A, B, and C, through the process laid out in Annex D. The convention also contains various provisions relating to information sharing, education and public awareness.</p>
<h5><a name="rotterdam-convention"></a>Rotterdam Convention (PIC)</h5>
<p>The <a href="http://www.pic.int/TheConvention/Overview/TextoftheConvention/tabid/104…; target="_blank">Rotterdam Convention</a> on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, <a href="http://www.pic.int/&quot; target="_blank">administered</a> by the United Nations Environment Program, intends to (1) promote shared responsibility and cooperative efforts among parties in the international trade of certain hazard chemicals in order to protect human health and the environment from human harm; and (2) contribute to the environmentally sound use of those hazardous chemicals, by facilitating information exchange about their characteristics, by providing for a national decision-making process on their import and export and by disseminating these decisions to parties.</p>
<p>The Convention covers <a href="http://www.pic.int/TheConvention/Chemicals/AnnexIIIChemicals/tabid/1132…; target="_blank">pesticides and industrial chemicals</a> that have been banned or severely restricted due to health or environmental concerns. If a party has taken final regulatory action regarding a specific chemical, the party must notify the Secretariat of that action. Once the Secretariat has received at least one notification from two Prior Informed Consent regions regarding a specific chemical, it forwards the notifications to the Chemical Review Committee. The Chemical Review Committee reviews the information provided, then recommends to the Conference of the Parties whether the chemical should be subject to the Prior Informed Consent (PIC) procedure and listed in <a href="http://www.pic.int/TheConvention/Chemicals/AnnexIIIChemicals/tabid/1132…; target="_blank">Annex III</a>.</p>
<p>Once a chemical is listed in Annex III, it is subject to the <a href="http://www.pic.int/TheConvention/Overview/Howitworks/tabid/1046/languag…; target="_blank">PIC procedure</a>, meaning there are certain obligations on the parties when they import and export the chemical. Each party must implement legislative or administrative measures with respect to the import of the chemicals listed, deciding whether or not to allow imports or whether to allow them under specified conditions, and must provide a response to the Secretariat concerning the future import of the chemical. Parties that are exporting the chemical must provide export notification to the importing party. Furthermore, the Convention promotes an <a href="http://www.pic.int/TheConvention/Overview/Howitworks/tabid/1046/languag…; target="_blank">exchange of information</a> among the parties.</p>
<h5><a name="reach"></a>REACH</h5>
<p>The <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32006R1907:…; target="_blank">Registration, Evaluation, Authorisation and Restriction of Chemical Substances</a> (REACH) is the European Union’s chemical <a href="http://ec.europa.eu/environment/chemicals/reach/reach_intro.htm&quot; target="_blank">regulatory system</a>. The aim of the regulation is “to improve the protection of human health and the environment through better and earlier identification of intrinsic property of chemical substances.” It places greater responsibility upon industry to <a href="http://guidance.echa.europa.eu/about_reach_en.htm&quot; target="_blank">manage the risks</a> from chemicals and provide a minimum data set of safety information.</p>
<p>For a discussion of REACH and its lessons for the United States, see the November 2012 issue of ELR.</p>
<p>REACH requires registration for most <a href="http://guidance.echa.europa.eu/chemicals_covered_en.htm&quot; target="_blank">chemical substances</a> that are manufactured or imported in quantities of one ton or greater each year. Manufacturers and importers must submit a <a href="http://guidance.echa.europa.eu/registration_en.htm&quot; target="_blank">registration</a> dossier to the <a href="http://echa.europa.eu/&quot; target="_blank">European Chemicals Agency</a> (ECHA) providing information and data on how the substances can be used safely. A registrant may start or continue the manufacture or import of a substance if there is no indication to the contrary in the three weeks following the submission. ECHA may choose to further evaluate a substance if necessary and may place <a href="http://guidance.echa.europa.eu/restriction_en.htm&quot; target="_blank">restrictions</a> on the substance. If a company fails to register its substance with ECHA, it will not be allowed to manufacture or import, or continue to manufacture and import, the substance. Registrants must update his or her registration without undue delay with any relevant new information and submit it to the Agency.</p>
<p>REACH also regulates <a href="http://guidance.echa.europa.eu/downstream_users_en.htm&quot; target="_blank">downstream users</a> of chemical substances. Downstream users include formulators of preparations, users of chemicals in industrial processes, professional users or producers of articles, but do not include distributors and consumers. Downstream users must notify ECHA if they use the substance outside the conditions laid out by the manufacturer or importer, if they conclude that their classification and labeling is different from that of the manufacturer or importer, or within three months of the first supply received of the authorized substances.</p>

The Debate: The New Toxic Substances Control Act Is Now Five Years Old: A Report Card
Richard A. Denison - Environmental Defense Fund
Lynn L. Bergeson - Bergeson & Campbell, PC.
Penelope A. Fenner-Crisp - Environmental Protection Network
Eve C. Gartner - Earthjustice
Bob Sussman - Sussman & Associates
Jean Warshaw - Lawyer and Author
Environmental Defense Fund
Bergeson & Campbell, PC.
Environmental Protection Network
Sussman & Associates
Lawyer and Author
Current Issue
The Debate: The New Toxic Substances Control Act Is Now Five Years Old: A Report

JUNE 22 of this year will mark the fifth anniversary since President Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act. Popularly still known by the name of the 40-year-old statute it replaced, the new version of the Toxic Substances Control Act had a vision to follow in reforming a system for evaluating and regulating chemicals in commerce that everyone, from industry to green NGOs to government officials, agreed was weak and ineffective. The new TSCA, promising to fix a broken statute, received bipartisan support and was the first major environmental law in a quarter century.

In assembling a panel to give a report card on implementation of the law on its fifth anniversary, we noted a recent article in E&E News:

"A withering new report from one of the country’s leading science authorities faults EPA’s approach to chemical risk evaluations under the Trump administration — a process the Biden EPA has already pledged to overhaul."

"In an assessment released today, the National Academies of Sciences, Engineering, and Medicine said EPA should make changes to how its toxics office manages the systematic review process under the Toxic Substances Control Act. The study determined EPA fell short in all four areas it scrutinized — comprehensiveness, workability, objectivity, and transparency."

This begets a question, one especially important because the “new” TSCA is now five years old: How well has TSCA been implemented to date? Given what we’ve seen of the rollout so far, what needs to be improved to realize the goals of the late Senator Lautenberg in pushing this legislation for so many years?

As a note, the Forum invited a representative from EPA’s toxics office to participate in this Debate, but through a spokesman the agency declined, citing a need to study the issue once leadership is confirmed.

June 22 will mark the fifth anniversary since President Obama signed the law popularly known as the new Toxic Substances Control Act. The statute reforms a system for evaluating and regulating chemicals in commerce that everyone, from industry to green NGOs to government officials, agreed was weak and ineffective. We asked a panel of experts to evaluate implementation of TSCA 2.0 and suggest improvements.

Procedural Changes in Agency Rulemaking
James McElfish - Environmental Law Institute
Environmental Law Institute
James McElfish

It has been a year of momentous change in environmental protection and governance. As we look over the horizon to 2021, it’s clear that many traditional expectations about environmental protection have been changed in areas of water pollution, climate change, endangered species, and air emissions. Added to this are numerous procedural changes affecting rulemaking, cost-benefit analysis, use of scientific information, federal advisory committees, and a comprehensive rewrite of the National Environmental Policy Act (NEPA) regulations. The procedural landscape is in greater flux than at any time since the early 1970s. ELI has been seeking to aid practitioners and policymakers to think about what lies ahead.

It’s important to recognize that rulemaking activity has accelerated. This is affected by the Congressional Review Act (CRA), which provides an expedited process for legislative repeal of rules and which has a look-back period for rules adopted toward the end of a prior session of Congress. These provisions were used by Congress in 2017 to repeal 15 rules adopted by the Obama administration in 2016. Perhaps fearing a turnabout, the administration has been finalizing as many of its rulemakings as possible by June 2020 in order to avoid the possibility of CRA action in 2021.

Rulemaking processes are changing. EPA is overhauling its standard approach to cost-benefit analysis, last revised in 2010. And in April 2020, the agency submitted a draft rule to OMB which may limit or exclude consideration of “co-benefits” in air pollution rulemaking. EPA used this approach in its April 2020 final regulatory review of the Mercury and Air Toxics Standard for stationary sources. By excluding co-benefits from control of particulate matter, EPA concluded that regulatory and compliance costs from the rule exceeded the remaining direct benefits.

The “social cost of carbon” is another instance in which revised cost-benefit practices affect regulations and will do so in the future, unless revised. This concept assigns values to the damage caused or avoided by each additional ton of carbon-equivalent greenhouse gases emitted. The federal Interagency Working Group on the Social Cost of Carbon developed a uniform estimate in 2009 and updated it in 2016. In 2017, President Trump issued Executive Order 13783, disbanded the Interagency Working Group, and withdrew the documents it had produced. The Order instructed federal agencies to prepare their own estimates under general OMB procedures. EPA and other federal agencies have produced “interim” estimates for social cost of carbon for use in rulemakings, resulting in far lower numbers than those produced by the IWG.

Regulatory cost calculations are also significant in the context of the continuing effect of 2017’s Executive Order 13771, which requires agencies to repeal two existing regulations for every one adopted, and to achieve a specified level of regulatory cost savings each year. OMB instructed EPA to achieve net cost reductions of $40 billion in FY 2020, a huge deregulatory goal.

Executive Orders have played a major role in Trump administration policy management. EO 13777 directed federal agencies to identify existing rules for repeal, replacement, and modification. EO 13807 set in motion the proposal by the Council on Environmental Quality to replace the NEPA regulations. If implemented, these will remove many federal actions from environmental impact assessment, limit consideration of alternatives, and severely limit the array of impacts to be evaluated.

EO 13875 directed federal agencies to terminate one third of their advisory committees and conferred on OMB greater authority to determine the need for committees. EPA’s former Administrator ordered that the agency’s advisory committees exclude any member that benefits from any EPA grant. Members of the scientific community objected that this would result in exclusion of many of the most knowledgeable academic researchers. Several courts have ruled the order procedurally invalid. EPA also eliminated and downsized several of its scientific panels, and in February 2020 it removed the ability of its flagship Science Advisory Board (SAB) to determine its own docket. Just in the last year and a half, SAB has questioned the scientific bases for several of EPA’s high-profile regulatory rollbacks, including the redefinition of waters subject to the Clean Water Act, and the SAFE vehicle fuel economy standards, as well as EPA’s withdrawal of the “risk finding” underpinning the agency’s regulation of mercury and air toxics emissions.

In 2018 EPA proposed a rule to preclude the agency from relying on scientific data or models unless the data and models could be shared with the public. This proposal led to substantial concern, especially where data (including health data) had been collected under conditions of confidentiality. EPA’s supplemental proposal will result in similar limits and will be litigated.

In the enforcement area, the Justice Department determined that the federal government cannot legally accept Supplemental Environmental Projects in negotiated settlements despite a 35-year history of doing so. SEPs are agreements by an alleged violator to fund environmental benefits to communities and ecosystems affected by an alleged violation. Other forms of agreement are favored. EO 13892 required federal agencies to create procedures that link self-reporting of violations in exchange for waivers and reductions in civil penalties, and requires agencies to provide pre-enforcement rulings to regulated parties. In January 2020, citing the Executive Order, OMB issued a request for information seeking additional options to “protect Americans against the unjust or arbitrary exercise of governmental power.”

There’s a lot to keep up with, but the procedural changes are as profound and perhaps longer lasting than the substantive ones.

Procedural changes in agency rulemaking.

Cuyahoga's Myths and Urban Justice
Stephen R. Dujack - Environmental Law Institute
Environmental Law Institute
Current Issue

The famous Cuyahoga River fire of June 22, 1969 — the spur that started debate on pollution across the nation, and led to passage of the Clean Water Act three years later — is lodged more in legendary storytelling than in reality. The fire was actually fairly minor, causing only $50,000 in losses to the Republic Steel Mill located along the river, damaging some wooden trestles. Moreover, no photograph of the event exists — the photo reproduced here, like the one a month later in Time magazine, was from a much larger 1952 blaze.

According to Cleveland Historical, the river actually caught fire several times before the 1969 event went viral. So concern was not new. In fact, in 1881, “the mayor of Cleveland had called the Cuyahoga ‘an open sewer through the center of the city,’” as quoted in Teresa Opheim’s excellent write-up in EPA Journal on the event’s 20th anniversary. The river picked up effluvia from Akron to Cleveland and dumped it into Lake Erie, creating a cesspool.

In Opheim’s account, the “spiritual damage” reported by local newspapers was far greater than the actual damage when the river, covered with oil and debris, ignited for 20 minutes that summer day. Cleveland soon became a national punch line. Its fabled industry, the economic underpinning of the region, kept visitors away from the city and kept the locals surrounded by water pollution, not to mention foul air.

Ironically, according to Cleveland Historical’s Michael Rotman, “the city and its residents were beginning to take responsibility for the cleanliness of the river” in the decade preceding the famous fire. In fact, “residents overwhelmingly passed a $100 million bond initiative to fund the Cuyahoga’s cleanup” a year before the blaze. And in an extended blog post titled “Fables of the Cuyahoga: Reconstructing a History of Environmental Protection,” Case-Western law professor Jonathan Adler lists numerous actions in response to the stream’s pollution taken prior to the fire.

Adler would presumably agree with Rotman’s conclusion that the 1969 conflagration “was not really the terrifying climax of decades of pollution, but rather the last gasp of an industrial river whose role was beginning to change.”

Today, burning pollutants on an urban river would bring up issues of environmental justice, so it is worth noting that the fire is a good example of the impacts often faced by poor and/or minority communities. The blaze took place just yards from the city’s first African American neighborhood. Into the breach stepped Carl Stokes, the dynamic mayor and the man responsible for the river cleanup bond campaign a year previously.

Stokes was the first black elected to head a major American city. As a result, “the national press had their reporters here 24 hours a day,” resident Ben Stefanski would later observe. “They were living here so they had to tell the story” when the infamous fire broke out.

As Rotman reports, Mayor Stokes “became deeply involved with the issue, holding a press conference at the site of the fire the following day and testifying before Congress — including his brother U.S. Representative Louis Stokes — to urge greater federal involvement in pollution control.” The mayor demanded funding from Washington as well as changes in the law to stop allowing facilities to discharge into the Cuyahoga with impunity. “The Stokes brothers’ advocacy played a part in the passage of the federal Clean Water Act of 1972,” Rotman concludes.

Though the Stokeses successfully leveraged environmental concern to help a polluted African American neighborhood, the cleanup was slow. Today, the stream’s health, while vastly improved in terms of industrial discharges, is still impaired by non-point sources not easily regulated by the federal law. Thus, although the Cuyahoga was designated an American Heritage River in 1998, the watershed is one of 43 Great Lakes Areas of Concern in EPA’s classification. Cuyahoga Valley National Park was established in 1974, but it begins upriver from the neighborhood where the blaze occurred. That community still includes a dredged working river flanked by a cement plant, gravel pits, abandoned sites, and a steel mill.

Notice & Comment is written by the editor and represents his views.

First Time a Natural Resource Granted Legal Status in U.S.

On [March 1], the citizens of Toledo, Ohio, granted legal rights reserved for people to Lake Erie, the 9,940-square-mile body of water on which their city depends. According to Sigal Samuel at Vox, the passage of the controversial ballot measure marks the first time a natural resource has been granted legal status in the United States, though a precedent for doing so has been established by other countries in recent years.

The saga of Lake Erie’s personhood began in the summer of 2014, when a toxic algae bloom in the lake, powered by agricultural runoff and other pollution, led the city to turn off the spigots. The incident caused a state of emergency declaration, leaving half a million people without water for three days.

Toledoans for Safe Water, an advocacy group that works to clean up and protect the lake . . . partnered with the Community Environmental Legal Defense Fund to bring the Lake Erie Bill of Rights Charter Amendment, which states the lake has the right to “exist, flourish, and naturally evolve” to a vote this week. The referendum passed with 61 percent approval . . .

The legislation entitles the lake certain rights and empowers citizens to advocate for those rights when they are being violated, like bringing legal suits against polluters. . . .

The Lake Erie Bill of Rights is part of what’s being called the Rights of Nature legal movement, an idea first floated by environmental lawyer Christopher Stone in the Southern California Law Review in 1972.



The case adds to a growing roster of legal losses for Mr. Trump’s efforts to undo Mr. Obama’s environmental legacy. Experts in environmental law estimate that the Trump administration has now lost about 40 environmental cases in federal courts.

— Coral Davenport in the New York Times, on the U.S. district court decision overturning Trump’s order rescinding Obama’s ban on drilling in the Arctic and Atlantic


The Pelican Brief

Did you hear the story about the single iconic sea bird that was recently awarded more than a million dollars in compensation for injuries suffered from the 2010 BP Deepwater Horizon blowout in the Gulf of Mexico? It was not, as Forum readers might expect, a matter of a bad NOAA NRDA. No, it was the NBA at issue, and the alleged lost income of a power forward on its franchise now named the Pelicans, who play in New Orleans.

To clarify, at the time of the spill, the team was called the Hornets, but they are an invasive species in Louisiana. So that mascot was supplanted in 2012 for a favorite local bird just removed from the endangered list. In fact, the pelican’s trials resulting from its status as a favorite source of feathers for ladies’ hats had led to the formation of the National Refuge System in 1903.

But there was no trial for the 21st century Pelican who claimed damage from the BP oil spill, because his brief was unpersuasive to a reviewing court. It all came down to basic contract interpretation and looking up a few terms of art used in tort lawsuits.

What happened was David West saw his success in claiming losses suffered from the oil spill reversed by an unimpressed panel of the Fifth Circuit Court of Appeals, which forcefully cited precedent and plain meaning in declining as a judicial waste of time to remand the case to the district court for reconsideration.

The Pelican’s brief claimed that he had experienced a diminution in salary after the catastrophe, a fact that the NBA star could prove through his tax records. He was awarded almost $1.5 million in lost wages by the settlement claims administrator, which was affirmed by the settlement appeal panel, even though he was paid the full amount of his $45 million contract.

As is the case with many superstars paid such sums, for tax purposes the total was front-loaded, with progressively smaller amounts paid the athlete each year. So West, who negotiated the contract four years before the blowout, was able to show that the year after the spill he earned less than the year before. For reasons the Fifth Circuit doesn’t go into, the federal district court then denied discretionary review of the settlement adjudicator’s award decision.

But the appeals jurists reversed the district judge in a terse decision. “The fact that West received less money in 2010 than in 2009 does not mean he ‘lost’ anything or was ‘damaged’ in any way,” their decision reads. “It means only he agreed to a front-loaded contract. And he did so many years before the Deepwater Horizon catastrophe.”

The settlement agreement is a contract, the judges quickly conclude in their decision, and therefore its interpretation is a “question of law” and the appeals court can review de novo. The court takes an excursion into Black’s Law Dictionary to uncover the true meaning of “loss.” The court then cites precedent in saying a claimant must have suffered “actual losses” and “harm” caused by the activity for which the compensation is to be paid. The damages must therefore be “unexpected.” The settlement documents make that clear, the reviewing court said.

Notably, for reasons not elucidated in the decision, the appeals court states it had previously said that proof of loss could substitute for proof of causation in awarding compensation under the settlement agreement. Still, under the court’s own precedent, “We must give ‘some weight’ to ‘what damages recoverable in civil litigation actually are.’” But since West was paid what he expected to be paid, that makes the issue of causation and financial evaluation irrelevant.

Thus the settlement claims panel and the district court erred in granting the compensation, the Fifth Circuit panel concludes.

50 years ago series: The Cuyahoga fire and urban justice.

Oil Spill Kicked Off Anti-Pollution Era
Stephen R. Dujack - Environmental Law Institute
Environmental Law Institute
Current Issue

Oil Spill Kicked Off Anti-Pollution Era

“In 1969 the signs of . . . concern were everywhere,” writes John Quarles, EPA’s first deputy administrator, in the opening chapter of his invaluable memoir Cleaning Up America. These signs “were manifest in the outcry against the Santa Barbara oil spill,” which happened on January 28, 1969, just eight days after Richard Nixon’s ascent to the White House. There followed in close order a series of epochal events every month of that year. “Suddenly, in cities across the country, citizen environmentalists campaigned. . . . People were demanding a change in the old policy toward the nation’s resources.”

Welcome to our year-long celebration of the dawn of the environmental era, via a series of columns on the events of exactly a half century earlier.

We began in the last issue, with the Christmas 1968 creation of the Apollo 8 “Earthrise” photograph that was the first view people ever had of their whole planet, beautiful as a thin fragile shell of life against the foreground of the bone-dead moonscape. We will build toward the 50th anniversary celebration of the passage of the first modern environmental law, the National Environmental Policy Act, and the creation of the Environmental Law Institute the same day to help the new field grow.

“The year 1969 was truly a watershed year,” agrees Daniel A. Vallero in his revealing book Paradigms Lost: Learning from Environmental Mistakes, Mishaps, and Misdeeds, beginning when “a major oil well off the coast of Santa Barbara, California, blew out, spilling almost a million liters of oil and depositing tar onto approximately 50 kilometers of beach.” It was a disaster of biblical proportions, a sea coast painted black, and “a significant impetus to the environmental movement.”

The spill was definitely a result of human agency. Union Oil’s Platform A off the southern California coast was allowed to continue to pump crude by the U.S. Geological Survey, which “had given approval to operate the platform using casings that did not meet federal and California standards.” Oil platform workers struggled for 11 days to contain the surging spew of crude, as a slick 2,000 square kilometers in extent covered the ocean, much of it eventually washing up on the shore.

Dolphins died by the score, their blowholes contaminated. Birds were coated with oil; desperate crews worked to clean them, making national headlines, but less than a third of the treated birds survived. Detergents used to disperse the oil from the sandy beaches proved toxic to wildlife, worsening the toll. But Union Oil President Fred Hartley was sanguine: “I don’t like to call it a disaster, because there has been no loss of human life. I am amazed at the publicity for the loss of a few birds.”

In Washington, President Nixon watched the media coverage. The oil spill had become the major news story nationally, as the three major networks flooded the zone with 50 reporters, and members of Congress arrived to demand action. The day after the slick washed ashore, Nixon announced a complete cessation of drilling in federal waters off the California coast.

The oil spill provided nightly news coverage, with the desperate volunteer crews struggling to save wildlife and to steam-clean their beaches. On March 21, the president signalled he had had enough — he visited the site of the spill. Nixon flew in a helicopter over the large extent of the slick. He then landed on the beach of Santa Barbara, where he held an impromptu meeting with local residents that was heavily covered by the press. “The Santa Barbara incident has frankly touched the conscience of the American people,” Nixon told the crowd, promising a federal response.

According to Quarles, Nixon’s response to the Santa Barbara oil spill was to kick off a White House anti-pollution campaign that would be popular with the public. The incident did not ultimately produce a nationwide drilling ban, nor did it even end oil rigs off the California coast. But it was the first use of the 1968 National Contingency Plan for hazardous releases, showing that a governmental response to industrial pollution could be welcome. And three years later Congress protected all the “waters of the United States,” including the near-shore oceans, in passing the Clean Water Act overwhelmingly over Nixon’s veto. Why the president turned against a law he largely spawned is another story.

Notice & Comment is written by the editor and represents his views.


"Carbon dioxide is being added to the earth's atmosphere by the burning of coal, oil, and natural gas at the rate of 6 billion tons a year. By the year 2000 there will be 25% more CO2 in the atmosphere than at present. This will modify the ehat balance of hte atmosphere to such an extent that marked changes in climate, not controllable through local or even national efforts, could occur." 

— From “Restoring the Quality of Our Environment,” 1965 report to President Lyndon Baynes Johnson


Commercial Fishermen Sue Big Oil Over Emissions and Oceans

Commercial fishermen in California and Oregon sued dozens of oil and gas companies . . . for hurting the fishing market in the Pacific Ocean by raising temperatures on Earth.

The Pacific Coast Federation of Fishermen’s Associations is seeking financial compensation for its losses from 30 companies, including oil and gas supermajors, according to the suit filed in a California state court.

“It’s industry to industry, one harming another with the causal connection to prove it,” Noah Oppenheim, executive director of PCFFA, said in an interview. “Certainly we believe that the merits of the case are pretty clear and self-explanatory.”

Defendants in the case, including Exxon Mobil Corp., Chevron Corp., BP PLC, Royal Dutch Shell PLC and ConocoPhillips, have known for almost 50 years that burning fossil fuels warms the planet, the plaintiffs said.

Algal blooms, which can lead to a buildup of domoic acid in crabs, are scientifically tied to warming oceans. Because the acid is dangerous to people, human-caused warming is directly threatening the fishing industry, said Oppenheim, who has degrees in marine biology and marine policies.

“If the fishermen were causing this much harm to the public, we should get shut down,” he said.

E&E News


An Update on Last Issue's Lead Feature 

Juliana v. United States has been called the most important environmental case of the century. The 50-day trial was slated to start on October 29 in federal district court in Oregon, about the time our issue with coverage of the pretrial jousting hit the mail. However, the youths’ climate lawsuit was stayed by the Supreme Court. On October 19, Chief Justice Roberts issued an order that stopped the case until the plaintiffs responded to a Department of Justice motion to dismiss because the government argued that the complaint was overly broad, and that climate policy shouldn’t be decided by the judiciary.

DOJ asked for a rare writ of mandamus to stop the proceedings and argued that “In contrast to the obvious harms to the government, respondents can make no credible claim of imminent, irreparable harm. . . . Their alleged injuries stem from the cumulative effects of CO2 emissions from every source in the world over decades: whatever additions to the global atmosphere that could somehow be attributed to the government over the time it takes to resolve the pending petition are plainly de minimis.”

On October 22, the youths responded to the Trump administration’s application for a stay. Among other things, the plaintiffs argued that contrary to the assertions of the Trump administration, the trial would not intrude on the ability of the executive branch to carry out its functions and that there would be no confidential information disclosed. Moreover, they pointed out that the projected 50-day length of the trial and its costs were not enough to show irreparable harm to the government for purposes of a stay.

Importantly, the youngsters argued that Juliana is not an environmental case per se; instead, it is a civil rights case. The issue is not about the federal government’s failure to act on the climate. Rather, the kids asserted that it is through its affirmative decisions that the federal government created a national energy system that caused climate change that now deprives them of their constitutional rights to life, liberty, and property. Thus, the plaintiffs argued, the decision does not hinge on a newly recognized unenumerated fundamental right and that DOJ thereby has purposely misstated the essence of their case.

On November 2, Roberts issued an order lifting the stay and denied without prejudice the Trump administration’s petition for a writ of mandamus. Consequently, DOJ filed a motion for a temporary stay of the trial and another petition for a writ of mandamus with the 9th Circuit. The appellate court issued an order giving the youth plaintiffs 15 days to file a response to the government’s petition. The 9th Circuit also provided the opportunity for District Court Judge Ann Aiken to address the petition for mandamus within the same time window. Moreover, the youngsters and the Trump administration were ordered to file a joint report on the status of discovery and any relevant pretrial matters.

On November 21, Aiken stayed the case until the 9th Circuit issues its decision. She also certified her prior orders in the case for interlocutory appeal. It appears that the trial is unlikely to start in the very near future.

From a procedural point of view, this is “no ordinary case,” to quote the trial judge. The U.S. government apparently believes that this lawsuit is a judicial usurpation of power. The Trump administration has filed, thus far, four petitions for a writ of mandamus with the 9th Circuit, and two petitions with the Supreme Court. But the legal requirements of mandamus will typically not be granted if adequate relief can be obtained by some other means — such as an appeal.

Juliana v. United States has been stayed but not stopped.

Oil spill kicked off anti-pollution era.

PFOA: Another Toxic Chemical Regulatory Science Ritual Battle
Craig M. Pease - Scientist and Former Law School Professor
Scientist and Former Law School Professor
Current Issue
Craig M. Pease

The PFOA risk assessment released by the Agency for Toxic Substances and Disease Registry in June, and the surrounding regulatory dispute, treads familiar ground. DDT, PCBs, MTBE, PCE, or whatever — in important ways, disputes over toxics regulation are all the same. Predictable actors play predictable roles, make predictable arguments about predictable toxics science (and also regulation, politics, law, and whatnot), with predictable outcomes. It is like watching the Roadrunner and Wile E. Coyote have at it — the details differ each time, but the plot is always basically the same, the endpoint inevitable.

PFOA is the best known of a group of closely related chemicals, the perfluoroalkyl acids. They are commercially valuable because of their surface properties, which makes them useful in non-stick frying pans, carpets, and firefighting foam.

Predictably, the best science concerns the harmful health effects at high doses. Predictably, epidemiologists documented those effects by studying factory workers and surrounding communities exposed to high doses. The harms are typical for toxics, and include cancer, reproductive damage, liver damage, and immunological damage. Predictably, the most prominent PFOA tort cases have sought redress for the high exposure of factory workers and those exposed by groundwater contamination in nearby communities. In one such case the award exceeded $500 million.

Those tort cases, and ensuing action by federal and state regulators to reach agreements with commercial manufacturers and users of perfluoroalkyls, resulted in effective and quick (by toxics regulatory standards anyway) action to dramatically reduce these types of exposures. Consequently, over the last couple decades, exposure to PFOA and its chemical relatives has dropped dramatically. That is real progress.

Yet those successes with the high-dose problem left a residual problem of exposure of the general population to low doses of PFOA. Critically, the residual low-dose problem that remains is both qualitatively different and much harder. The ritual combat over low doses entails the combatants just repeating old arguments and stating their predictable positions, since real progress toward understanding toxic harms at low doses is either extremely difficult, or just flatly impossible.

Why the lack of progress at low doses? Though the analogy is not entirely apt, being exposed to a high dose of a toxic chemical is like being clobbered with a hammer — the toxin just kills or harms outright. Conversely, at low doses, toxic chemicals typically act more like a malicious computer program, where the harm is not the physical chemical per se, but rather the information it encodes.

Tiny amounts of information can have immense downstream repercussions, especially in complex living systems. The importance of the Declaration of Independence derives not from the physical paper it was written on, but rather from its words, which information surely got King George III riled up and precipitated a system crisis all out of proportion to the Declaration’s minuscule information content.

The perfluoroalkyls’ harmful effects derive, in important part, from their binding to the PPARα receptor. They thus mimic chemicals found naturally in humans, rats and mice that bind to the PPARα receptor. In a very real sense, the perfluoroalkyls and many other low-dose toxins are analogous to a door key, and the receptor is a lock. Just as a key has information content, so too does a toxin.

Herein lies the conundrum of extremely low doses of toxic chemicals. We know toxins typically bind to receptors of various sorts, and thereby disrupt important paths of information flow in living humans. We know there are hundreds of different types of receptors (each “keyed” differently). Yet predicting the full downstream repercussions of receptor binding is well beyond the ken of science, now or in the foreseeable future.

For PFOA, as with many toxins, essentially everyone alive is exposed to minuscule doses. Not only has the dispute over high doses of PFOA played out predictably, but the endpoint of that dispute is the same all-too-familiar low-dose conundrum.

The large evolutionary biology literature on ritual combat goes back to Darwin’s work on sexual selection. As described in Elizabeth Penissi’s article on ritual combat in ants and birds, it evolves in animals so as to reduce losses from actual combat. Better for a peacock to display and strut, than to risk injury in a physical encounter.

With PFOA, and other low-dose toxins, it is not just the cost of a battle over low-dose toxic regulation. No amount of money spent on research will allow scientists to know what is fundamentally unknowable. In this circumstance, I just imagine the protagonists in toxics regulatory dramas as strutting peacocks.

PFOA: another toxic chemical regulatory science ritual battle.