Congress Considering Dangerously Expanding EPA’s Power

Erik Telford President, Franklin Center
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In the coming days, the Senate is expected to take up legislation that would grant the EPA new powers to regulate — and potentially ban — thousands of useful chemicals. Introduced by Senators Tom Udall (D-N.M.) and David Vitter (R-La.), the Frank R. Lautenberg Chemical Safety for the 21st Century Act amends the Toxic Substances Control Act (TSCA) of 1976, giving the EPA greater authority to determine which chemicals are safe enough for manufacturers to include in products sold in the United States.

The bill requires the EPA to review and approve 1,000 or so new chemicals that come on the market each year and do safety reviews for the more than 80,000 chemicals in active commerce. The EPA would also be granted the authority to determine whether to allow a chemical to be sold or manufactured based on the agency’s assessment of the health and environmental risks the chemical carries.

Without a doubt, programs like this are well intended; as one trade association president noted, “Having a stronger federal chemicals management program will not only improve the public’s confidence on the safety of chemicals, but will also provide businesses with much-needed certainty and consistency in the marketplace.” However, before transferring such a significant amount of authority to a government agency with a somewhat dubious track record when it comes to public safety, it may be instructive to look at a similarly themed state-level chemical regulation program that has been hijacked by activists – and which now discourages small businesses from operating within their borders.

In California, Prop 65 was a voter initiative that was intended to protect drinking water sources from toxic substances, and to reduce or eliminate exposures to those chemicals generally by requiring product label warnings. The law has become a windfall for trial lawyers, and has introduced label fatigue to the very citizens it was meant to protect. The now nearly ubiquitous “danger” label has become so commonplace as to be instantly overlooked by consumers.

In May, the California Office of Environmental Health Hazard Assessment (OEHHA) – which is the agency that administers Prop 65 – added Bisphenol A (BPA) to its list of chemicals known to the state to cause reproductive toxicity. This move completely ignored the fact that the FDA and its regulatory counterparts around the world, including in Canada, Japan, Germany, and the European Union, all agree that BPA is safe at current exposure levels.

California, however, is far from the only state pursuing politics over sound science; as the National Law Journal notes, Vermont Washington, Maine, Minnesota, and Oregon have all adopted so-called “green chemistry” laws as well.

TSCA modernization is likely to pass; the U.S. House passed H.R. 2576 at the end of June by a 398–1 vote, while its Senate counterpart passed out of the Senate Environment and Public Works Committee and now awaits a floor vote. Accordingly, watchdogs should keep an eye out for abuse when the bill passes.

First, it’s worth monitoring whether the EPA begins to waste millions in taxpayer dollars studying chemicals that have already been deemed safe by other well-respected federal agencies like the FDA. Despite this conclusive finding, data from the National Institutes of Health show that since 2000, nearly $170 million in grants has been doled out to fund research on BPA. Hopefully the EPA will show greater respect for the public purse than the NIH has.

In addition, it’s possible that the agency could become overzealous with its potential new authority; after all, there’s a reason that the EPA has become activists’ favorite cabinet department when agency-shopping for a bureaucracy to do their bidding. If the EPA is granted these new powers over chemical regulations, the agency should be mindful and careful not to over-regulate to the point where the alternative environment is more dangerous than the status quo.

Far too often bad information leads health activists, medical paternalists, and anti-technology nannies to call on regulators to ban substances falsely deemed as dangerous. Despite the fact that a chemical like BPA increases the shelf life of food and prevents the formation of deadly bacteria, it has been in the crosshairs of regulators for a long time. Now, with one central authority likely to be responsible for its fate, vigilant citizens must ensure the EPA doesn’t abuse its new powers to go after the cause célèbre of anti-chemical activists.