A Cautiously Pessimistic Appraisal of Trends in Toxic Regulation

Abstract

Many of the most dramatic and politically salient environmental disasters have involved toxic substances of one form or another. Yet despite the iconic status of these events, regulation of toxic substances in the United States (and elsewhere) is criticized by a broad cross section of stakeholders and experts. Among those on the left, the primary statute, the Toxic Substances Control Act (TSCA), is considered moribund and structurally unsound because of the high barriers it creates to regulatory action. Critics on the right challenge the tenuous scientific bases for regulation and question, often on the basis of cost-benefit analyses, the rationality of the regulations that exist.

Other countries are establishing innovative regulatory programs, most notably in the European Union (EU) and Canada. The brightest light in the firmament is surely the Registration, Evaluation, and Authorization of Chemicals (REACH) program recently enacted in the EU. REACH, at least on the surface, corrects many of the perceived defects in TSCA.

This Article adopts a guarded view of recent regulatory and scientific developments. While the regulatory advances in the EU will undoubtedly alter the landscape of toxics regulation in the United States and elsewhere, they incorporate many compromises that qualify their procedural and regulatory mandates. The past thirty years have demonstrated that toxics regulation is inextricably tied to scientific understanding. Science informs the architecture of regulatory regimes and supplies the factual grounding for agency decisions. The likelihood is low, if not negligible, that advances in toxicogenomics will significantly improve toxics regulation over the next decade or so. Policymakers and stakeholders should be leery of claims, whether regulatory or scientific, that the tensions in toxics regulation can be resolved. For the foreseeable future, the problems are too complex and our understanding too modest for difficult choices to be avoided. This recognition does not imply that toxics regulation in the United States cannot be improved, such as by adopting certain elements of REACH, or that investments in toxicological science are futile. Rather, it suggests that toxics regulation, particularly in the near term, must take into account the prevailing constraints – it should not be premised on transcending knowledge gaps, but instead on empowering agencies, in conjunction with stakeholders, to manage the unavoidable uncertainties effectively