9th Circuit Navigates the Uncharted Space of Lautenberg on Existing Chemicals
Recall the speech that began virtually every episode of the Star Trek science fiction television series:
Space: the final frontier. These are the voyages of the Starship Enterprise. Its five-year mission: to explore strange new worlds. To seek out new life and new civilizations. To boldly go where no man has gone before!
The final phrase was changed to “where no one has gone before” by the time Star Trek: Next Generation aired. Now fast forward to 2019, and the 9th Circuit’s recent excursion into the strange new world of TSCA in the case of Safer Chemicals, Healthy Families v. US EPA (SCHF v. EPA). Like the Enterprise, the 9th Circuit has boldly gone where no one has gone before, to seek out new life in the overhauled Section 6 provisions of the Act.
The main holding of SCHF v. EPA is that when EPA embarks on prioritizing existing chemicals, it has to map all of the conditions of use of the chemical, including legacy uses and associated disposal, if any. The court did not decide whether all uses of a chemical must be reviewed together, or whether all uses of the chemical must be included in the scope of a risk evaluation. In these areas, Petitioners lacked standing or the panel ruled that the language of the risk evaluation framework rule was neutral on the question, respectively. The panel explored this space, but ultimately declined to rule on EPA’s interpretation of TSCA in these crucial aspects.
In the next 60 days, we’ll find out if the Administration challenges the court’s interpretation that the statute is unambiguous on the conditions of use question. In the meantime, EPA should stay the course on the other aspects of its rational implementation of TSCA Section 6. The Petitioners in SCHF v. EPA appear to be aiming to eliminate any exposure to a chemical if only one use of the chemical is harmful. That has never been, and is still not, the purpose of TSCA. Congress made aggregate risk evaluations optional in Lautenberg. EPA has the obligation to distinguish good uses from bad. Decisions that certain uses are more urgent to evaluate than others should be “as determined by the Administrator”. Those who think that informed risk decisions are only possible at the end of the risk evaluation process underestimate EPA’s experience with the chemicals it selects for review.