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

Wake Forest Univ. Legal Studies Paper No. 2733336

14 Pages Posted: 18 Feb 2016

See all articles by Emily Hammond

Emily Hammond

George Washington University - Law School

Thomas Owen McGarity

University of Texas at Austin - School of Law

Noah Sachs

University of Richmond School of Law

Sidney A. Shapiro

Wake Forest University School of Law

Wendy E. Wagner

University of Texas at Austin – School of Law

James Goodwin

Center for Progressive Reform

Date Written: February 1, 2014

Abstract

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

Hammond, Emily and McGarity, Thomas Owen and Sachs, Noah and Shapiro, Sidney A. and Wagner, Wendy E. and Goodwin, James, The Role of Health and Safety Evidence in Regulation and the Civil Justice System: Preserving Protection of the Public (February 1, 2014). Center for Progressive Reform Issue Alert, No. 1401, 2014, Wake Forest Univ. Legal Studies Paper No. 2733336, Available at SSRN: https://ssrn.com/abstract=2733336 or http://dx.doi.org/10.2139/ssrn.2733336

Emily Hammond

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Thomas Owen McGarity

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1384 (Phone)

Noah Sachs

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States
804-289-8555 (Phone)

Sidney A. Shapiro

Wake Forest University School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States
336-758-5430 (Phone)

Wendy E. Wagner

University of Texas at Austin – School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

James Goodwin (Contact Author)

Center for Progressive Reform ( email )

455 Massachusetts Ave., NW, #150-513
Washington, DC 20001
United States

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