TSCA 'Reforms' Designed to Please Polluters

Industry Takes Aim at Citizen Suits

For several decades, corporations intent on avoiding accountability for the illness and injuries their products sometimes cause have waged a fierce campaign against citizen access to state and federal courts.  Industry lobbyists have pressed state and federal lawmakers to impose arbitrary caps on damage awards, pressed Congress to adopt federal statutes that would preempt state tort law, and pushed to make it easier for corporations to get lawsuits brought against them by victims dismissed before courts even have a chance to hear the merits.

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 bill introduced in the Senate to overhaul the Toxic Substances Control Act (TSCA)—the primary law governing federal regulation of toxic chemicals.  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.”  In short, if the CSIA’s evidentiary preemption provision becomes law, the EPA’s formal determination that certain uses of a particular chemical are safe would “preempt” courts from considering any additional evidence that might lead them to conclude otherwise—even if the manufacturer knew that the EPA's findings were based on bad or partial evidence, had become outdated, or were in some other way flawed.

Such a system would undo decades of settled state tort law allowing juries to determine on an independent basis, with specific consideration of the facts surrounding how a person was injured, whether a manufacturer fulfilled its duty to make reasonably safe products.  Government safety standards have always been relevant for jury decisions in these types of cases because they establish a clear standard of conduct, but juries in appropriate cases remain free to conclude that a manufacturer should have gone beyond the standard set by the government in cases where the standard is met.

State tort law has long treated government safety standards as establishing the minimum requirements for corporate conduct for good reason, too.  Regulatory standards may become outdated or inadequate in light of newly available information—information that some manufacturers might otherwise ignore.  Moreover, because of the difficulty of updating standards, once a standard is in place, resource-starved agencies are unlikely to devote the staff time to updating them, despite the need to do so.

The Bigger Picture

The traditional state tort law approach also takes full advantage of the civil justice system’s unique role in addressing threats to public health, safety and the environment.   The civil justice system complements the protections afforded by state and federal regulation by seeking to hold individuals and businesses financially accountable for the harms their actions cause.  The civil justice system enhances the effectiveness of the regulatory system by playing a key information-gathering role, as the discovery process in civil trials is often able to uncover critical new risk information that agencies can use to strengthen regulatory safeguards.  The civil justice system also counters the problem of “agency capture”—when an agency becomes coopted or unduly influenced by the industry it is supposed to oversee, leading it to adopt weak or ineffective safeguards.  Even if an agency has become captured, the courts still stand ready to hold corporate wrongdoers accountable for the harms they have caused.  Finally, because effective regulatory safeguards are not able to prevent all injuries, the civil justice system offers victims the opportunity to seek fair compensation for their injuries.

This CPR Issue Alert examines the CSIA’s evidentiary preemption provision in greater detail and concludes that the provision will 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.  The CSIA would require that courts consider only the EPA’s safety determinations when judging whether a chemical company had acted in a reasonably safe manner.  The problem with preempting courts’ consideration of other evidence is that the CSIA requires the EPA to employ a weak safety standard when making these determinations.  As a result, the EPA is likely to systematically understate the public health or environmental hazards posed by harmful chemicals.  To make matters worse, industry groups thoroughly dominate the rulemaking process by which these safety determinations would be made, enabling them to weaken the determinations even further.

Even if subsequent evidence confirms that a particular safety determination is too weak, the public will have little recourse to ensure that the EPA properly revises this determination before it is relied on again in future court cases.  The CSIA would establish a process for updating existing safety determinations, but it is so complex, time-consuming, and full of pitfalls that even plainly inadequate determinations would not be revised in a timely or effective manner.

Recommendations

The CPR Issue Alert concludes by recommending that Congress pursue a TSCA reform bill that excludes anything like the CSIA’s evidentiary preemption provision, and that it resist the inclusion of similar provisions in other bills to update existing environmental, health, and safety statutes.  As it approaches TSCA reform, Congress should instead seek to preserve the critical role that the civil justice system plays in protecting people and the environment against harmful chemicals.  Congress can do this by adopting a TSCA reform bill that includes a strong “savings clause”—making clear that protects citizen access to the courts in cases arising from harmful exposures to toxic chemicals is protected.  In addition, the reform bill should also make clear that all findings, assessments, determinations, or other actions the EPA undertakes pursuant to TSCA do not have the effect of preventing a plaintiff from introducing evidence that might be different from or contrary to the information relied upon by the EPA.  These measures would help to ensure that the civil justice system can continue to play an active role in responding to chemical hazards.

• Read the Issue Alert: The Role of Health and Safety Evidence in Regulation and the Civil Justice System: Preserving Protection of the Public, by CPR Member Scholars Emily Hammond, Thomas McGarity, Noah Sachs, Sidney Shapiro, and Wendy Wagner, and CPR Senior Policy Analyst James Goodwin, CPR Issue Alert #1401, February 2014.
• Read the blog post. Read the day-of-release blog post by co-author Sidney Shapiro.
• Related Issue Alert. Read TSCA Reform: Preserving Tort and Regulatory Approaches, CPR Issue Alert 1309, by CPR Member Scholars Emily Hammond,Thomas McGarity, Sidney Shapiro, and Wendy Wagner, and CPR Senior Policy Analyst James Goodwin, released in October 2013.