The Role of Health and Safety Evidence in Regulation and the Civil Justice System: Preserving Protection of the Public
Center for Progressive Reform Issue Alert, No. 1401, 2014
14 Pages Posted: 18 Feb 2016
Date Written: February 1, 2014
For several decades, corporations intent on avoiding accountability for the harm their products cause have waged a fierce campaign against citizen access to the state and federal civil justice systems. Recently, the chemical industry has devised yet another tactic for advancing the long-running campaign to weaken citizens’ ability to make effective use of the civil justice system: “evidentiary preemption.” The industry is supporting a Senate bill to overhaul the Toxic Substances Control Act (TSCA) — the primary law governing federal regulation of toxic chemicals. This bill — the Chemical Safety Improvements Act (CSIA) — would, among other things, fundamentally alter applicable evidentiary doctrines in many tort cases involving claims of harmful exposures to toxic chemicals. The CSIA would charge the Environmental Protection Agency (EPA) with making “safety determinations” for certain chemicals. The evidentiary preemption provision of the CSIA would then make these safety determinations both automatically admissible in any litigation and force both federal and state courts to recognize the EPA’s conclusions as “determinative of whether the substance meets the safety standard under the conditions of use addressed in the safety determination.” This Issue Alert explains how CSIA’s evidentiary preemption provision would undermine the ability of the civil justice system to hold chemical manufacturers and users accountable for putting people and the environment in harm’s way. We recommend that Congress reject anything like the CSIA’s evidentiary preemption provision when pursuing TSCA reform, and that it likewise reject the inclusion of similar provisions in other bills to update existing environmental, health, and safety statutes.
Keywords: TSCA, Chemicals, Regulation, Evidence, Civil Justice, Congress
JEL Classification: K23, K32, K41
Suggested Citation: Suggested Citation