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Abstract: This essay, which will be published in Environmental Law Stories (Richard Lazarus & Oliver Houck, eds.) in the Foundation Press "law stories" series, reinterprets the landmark environmental case, U.S. Environmental Protection Agency v. Reserve Mining Co., as an implicit adoption of a feasibility-based approach to environmental regulation. The usual understanding casts Reserve Mining as an early judicial approach to the threat of toxic pollution, which permitted agencies and courts considerable freedom to act preventively and aggressively against potential toxic injury despite fundamental scientific uncertainty regarding the existence of a danger to human health, to say nothing of its extent. It is, indeed, often criticized on these grounds, while others have hailed it as an early example of the Precautionary Principle at work. The present essay traces in detail the lengthy course of the administrative and judicial litigation over Reserve Mining's discharges into Lake Superior. It argues that the administrative and judicial tribunals uniformly resolved the scientific dispute by relying on a feasibility standard for regulation. Each tribunal acknowledged the uncertainty of the potential danger, demanded that Reserve address it, and adopted as its implicit standard that the polluter take all of the steps within its technological and economic capacity to eliminate the pollution.
Reserve Mining, asbestos, Clean Water Act, regulation of toxic substances
Abstract: The European Union's newly enacted comprehensive regulation for industrial chemicals, known as REACH, draws heavily on three decades of experience in the United States under the Toxic Substances Control Act. Much of that experience has been negative, inasmuch as TSCA is widely regarded as a disappointment among US environmental laws, and so REACH deliberately reverses many of the legislative choices that Congress made in TSCA. REACH also takes advantage of important new regulatory concepts that were not available to the framers of TSCA thirty years ago. The passage of REACH has sparked renewed interest in reforming TSCA, and the reformers will undoubtedly look to REACH for ideas. This article contends that, while many aspects of REACH can fairly be understood as the Anti-TSCA, on closer examination REACH follows many of TSCA's fundamental approaches to chemicals regulation. The fundamental similarities offer a unique opportunity to develop a synthesis of the two regulatory regimes, which could form the practical basis for updating TSCA. While reform based on a synthesis of TSCA and REACH would be evolutionary rather than revolutionary, it could nevertheless greatly improve chemicals regulation in the US. This article offers principles for such reform. The article concludes with a discussion of the global impact of national regulatory systems like REACH.
TSCA, REACH, chemical regulation
Abstract: It is widely recognized that quantified risk has become the dominant basis for the regulation of chemical substances in order to protect human health and the environment. It is less well understood that risk has two distinct meanings in environmental regulation, and that they serve two distinct functions, which correspond to the general need of all regulatory systems to identify the universe of problems which require correction - the trigger for regulatory action - and to specify the actions or conditions - the standard which constitutes correction of the problem. In chemical regulation, risk both defines the environmental problem to be addressed and disciplines the regulatory response. One of the chief consequences of the use of risk for the latter purposes is the creation of a demand for large amounts of scientific information about chemicals, which cannot be satisfied by existing regulatory systems. The resulting data gap is a well documented phenomenon in chemical regulation. Most regulatory systems for chemicals seek to fill the data gap by supplying more information. Even with improvements, a filling strategy has serious inherent limitations in its ability to generate sufficient data, however. A better strategy is to bridge the data gap by reducing the demand for data. A bridging strategy harnesses the power of information by reducing demand and making the required information count. Instead of drowning in a sea of uncertain and conflicting data, regulatory systems can apply manageable amounts of actually obtainable data to protect human health and the environment from toxic chemicals.
risk assessment, chemical information, data gap
Abstract: The past three or more Congresses have seen substantial efforts to enact "risk reform" legislation that would require environmental, health, and safety regulations to be adopted following the performance of risk assessments modeled on quantitative risk assessment methods for carcinogens. While such a requirement has potentially beneficial effects on the quality of the resulting rules, there is also a substantial potential for mischief by reorienting substantive environmental, health, and safety regulation, and by introducing substantial new costs and delays into the regulatory process. This article, which is derived from a report by the authors to support an American Bar Association recommendation on risk legislation, presents eight guidelines that ought to be followed by such legislation were it to be adopted. The article also draws on the experience with the National Environmental Policy Act. Environmental impact statements are analogous to risk assessments in many (heretofore unrecognized) respects, especially the importance of distinguishing between a procedural, analytical tool for decisionmaking and a substantive, result-determinative element of rulemaking.
Abstract: Unlike air and water pollution, pollution from dangerous solid and liquid wastes on land remains a relatively concentrated, active hazard for long periods of time. Uncontrolled, land pollution moves through the environment slowly and often without significant diminution of toxicity. Persistence, in fact, is often regarded as the defining quality of dangerous land pollutants. Hazardous and nuclear waste regulation is very much concerned with the problem of maintaining the isolation of solid and liquid materials over decades, centuries, and even millennia, and, the author argues, there is good reason to believe that waste management practices and institutions are not well designed to monitor and safeguard wastes over the time periods during which it remains dangerous. The author discusses how the principles of the Breaking the Logjam project might be applied in crafting solutions to the problems posed by the temporal dimension of hazardous waste management and concludes with the suggestion of an additional principle of institutional learning and the conservation of options: in any long-term effort one must expect that over time we will come to understand a problem better and so develop better ideas for addressing it. But these improvements can only be implemented if the regulatory system is capable of learning and if decisions now leave open options for the future.
Abstract: Scientific information is a central concern of all regulation, especially the regulation of toxic chemicals. Information is both a prerequisite to regulatory action, and an object and collateral effect of the regulatory system itself. Regulatory systems, in other words, both demand and supply information. The demand side of chemical regulation has been explored in detail, and the dearth of such information (the "data gap") has been well documented. This essay, which will appear as a chapter in Rescuing Science from Politics Wendy Wagner & Rena Steinzor, eds. (Cambridge Univ. Press, forthcoming July 2006), addresses instead the supply question - who should generate the information that regulatory systems require. Specifically, it asks who, as between the regulated industry and government, should generate it, and under what circumstances. The essay reviews the reasons for preferring private generation and the reasons for concern about the amount and quality of chemical information from this source. It concludes that regulated enterprises must be the baseline source of chemical information, but that there are several specific areas in which governmental generation should be preferred. They include types of information which are subject to structural market failure (thus precluding effective private generation), as to which the government has a comparative advantage as generator, and for which a governmental source is essential to the credibility of the information.
environmental regulation, data gap, government-sponsored research
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