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This chapter looks at American and European policies toward the risks of chemicals and hazardous substances. The 1976 Toxic Substances Control Act (TSCA) significantly strengthened American chemical regulations and contributed to the 1979 decision of the EU to both harmonize and strengthen its chemical regulations, though they remained weaker than those of the United States. While there has been no major statutory change in American chemical regulation since then, in 2006 the EU approved REACH—the Registration, Evaluation, Authorization and Restriction of Chemicals, which made European chemical regulations significantly more stringent and comprehensive than those of the United States. Meanwhile, risk assessments by the U.S. federal government do not consider the hazardous substances in electronics deposited in landfills as a threat to public health.

The Toxic Substances Control Act (TSCA), which emerged from congressional legislation of the 1970s following the first Earth Day, was modeled on postmarket nuisance laws, in contrast to premarket-testing laws already in existence for pharmaceuticals and pesticides. In seeking to protect the public from toxic chemicals, TSCA creates and tempts considerable ignorance about chemical products, puts the public at risk without public health protections, and limits choices between more-toxic and less toxic products. Any substances found to be toxic are also difficult to limit or remove because studies identifying their risks are slow, erecting barriers to improved health protections. Companies use a “fog of science” to game procedural rules, keeping products in commerce and prolonging public risks, sometimes for decades. Less honorable behavior on the part of companies and scientists for hire distorts scientific fields and blocks better health protections.

The purpose of the National Environmental Policy Act (NEPA) is to ensure that all federally administered or assisted programs are conducted so as to take the environmental impact of their activity into consideration. The scope of NEPA includes privately financed and conducted projects for which federal licensing is required. The law also establishes a presidential advisory group called the Council on Environmental Quality (CEQ). The crucial section of the act (U.S. Code, Title 102, Pt. 2c), which concerns the environmental impact statement (EIS), states, in part, that The Congress authorizes and directs that, to the fullest extent possible . . . all agencies of the Federal Government shall . . . include in every recommendation or report on proposal for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on: •The environmental impact of the proposed action, • Any adverse environmental effects which cannot be avoided should the proposal be implemented, • Alternatives to the proposed action, • The relationship between local, short-term uses of man’s environment and maintenance and enhancement of long-term productivity, and • Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Environment in this context refers not only to wilderness, water, air, and other natural resources. It has a broader meaning that includes health, aesthetics, and pleasing surroundings. Although the law requires an EIS, it does not say anything about what conditions would be required in order to carry out the project. Moreover, NEPA does not give more weight to environmental considerations than it gives to other national goals. Thus the decision about implementation of a program is left to the courts. In practice, few projects have ever been halted by a court decision under NEPA. However, some projects have been abandoned or modified, before being challenged in court, because of NEPA. Figure 15.1 shows the framework of the federal environmental regulatory structure. Four federal agencies cover the environmental aspects of the national policy.

It is tempting under postmarket laws to demand ideal evidence to ensure that health protections are scientifically well founded and that decisions to redress injuries in the tort law are correct. Both ideas fail to protect the public. Under postmarket laws, this will keep the public at risk longer for the substance under consideration, delay consideration of other potential toxicants, and poorly protect children. In the tort law, this represents a mistaken view of a judge’s role in screening science and expert testimony and usurps the jury’s legal responsibility. A superior approach in both legal arenas is to integrate all the scientifically relevant evidence—for example, human studies, animal data, and mechanistic information—to assess the toxicity of substances. Congress’s recent amendments of TSCA edge it closer to recommendations in this book and ameliorate some of its shortcomings (chapter 1), but others will remain for a substantial period of time.

This chapter analyzes the difficult challenges that arise when considering the environmental justice effects of federal rules and regulations. It complements the discussion in Chapter 4 by examining a different part of the rulemaking process. Specifically, the authors identify five issues as being important in any analysis of distributional implications of a new environmental standard: the geographic scope of the analysis, the identification of potentially affected populations, the selection of a comparison group, how to spatially identify effects on population groups, and how exposure or risk is measured in an analysis. For each issue, the authors consider how it has been addressed in the academic literature, as well as in practice by the EPA as part of five recent proposed or final rulemakings completed under various pollution control statutes. The chapter concludes that, even though there has been a substantial uptick in the number of rules that consider environmental justice issues in their accompanying economic analysis, there remain significant analytical issues to resolve before this becomes a routinized practice.