“The average reader of The Atlantic would say, you know, chemicals should be safe. And the EPA should get to work reviewing them," said Faber. “Neither of these things are clear from this.”
Faber concerned that the bill doesn't provide sufficient funding to the EPA to test even the highest-priority substances in a timely manner. Asbestos exposure became grounds for one of the longest and most expensive mass torts in history; even from a purely financial perspective, it makes sense to preempt similar catastrophes. The agency has testified that about 1,000 substances ought to be quickly reviewed, and Faber estimates the bill provides about half as much money as would be needed to get through those chemicals in one generation.
“This new bill is certainly an improvement on the current Toxic Substances Control Act,” said Landrigan, noting that it would increase pre-market safety testing requirements, with a mandatory emphasis on vulnerable populations. The act also removes some “trade secret” loopholes, which allowed companies to hide data on chemical testing. “But it also doesn't go as far as a lot of us in the public health community were hoping it would go.”
Probably the most concerning thing to Landrigan and Faber is the bill's pre-emption of the states’ ability to regulate toxic chemicals.
“States have been the only cop on the beat—the EPA has been a paper tiger, certainly since 1991,” said Faber. “Now this law says that there’s a period when the EPA is reviewing a chemical during which states can’t act. This freezes state action while EPA is investigating. And that's been the only [regulatory] activity for the last two decades.”
If everyone is interested in appropriate safety testing, I asked Faber, then why would the exemption argument exist?
“I'm sure when you call the American Chemistry Council they'll have a good argument for that.”
And, they did have an argument. Having different regulations in different states is difficult and costly to industry.
“If industry was writing the bill, the preemption provisions would be stronger,” said Anne Kolton. “We certainly are comfortable with where it came out. But the proliferation of state level chemical restrictions—and, in some cases, standalone regulatory programs—was really becoming a major challenge for manufacturers.”
The most famous example may be California’s Proposition 65, which requires manufacturers to warn consumers if its product contains known carcinogens in its products. As Kolter put it, “That presents a challenge for manufacturers and retailers.”
Proposition 65 is among a small number of state-level programs that will remain outside of the new EPA preemption. But the general law is that once the EPA is done with its work, any state-level restrictions or bans that are in conflict with the EPAs findings would be preempted by the agency’s finding.
“Why would we throw that resource out the door if Congress and industry aren't able to provide enough money to review all the chemicals that should be previewed?” he posits. “There's no reason to block state action before EPA declares their final rule— other than industry's desire to simply chill any co-regulation.”
“I find it kind of ironic," said Landrigan, "that the political party that usually champions states' rights chooses to take those rights away when it's convenient.”