By Meg Holden — Sept. 11, 2013 at 7:20am
Members of Congress have recently renewed efforts to reform the 1976 Toxic Substances Control Act (TSCA). In April 2013, Senator David Vitter and the late Senator Frank Lautenberg introduced the Chemical Safety Improvement Act; in late July, the Senate Environment and Public Works Committee held a hearing on the bill. However, the US and EU are currently working on a trade agreement that could impact the US’s ability to reform this outdated law.
Earlier this summer, the US and EU launched negotiations on the Transatlantic Trade and Investment Partnership Agreement (TTIP). Because the US and EU already have a robust trading economy, the bulk of the TTIP negotiations, which will take place over the course of the year, will focus on reducing non-tariff barriers to trade (the environmental, health, and safety standards and regulations that can artificially act as trade barriers). One technique that trade negotiators use to remove these regulatory barriers is harmonization – that is, making standards and regulations the same or similar. The US faces significant regulatory barriers in industrial chemical trade. The US Trade Representative has stated that European toxic substances control laws unreasonably restrict trade from the US to EU. Thus, harmonization of industrial chemical regulations is likely to be a major issue throughout the negotiations, and might have implications on the US’s efforts for toxics reform.
The EU’s Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) regulatory system, which imposes extensive regulations on industrial chemicals, is significantly more stringent than TSCA. One primary difference between the two is that REACH requires chemical companies to provide evidence that their chemicals do not pose an unreasonable risk to health or the environment. To use chemicals of high concern, companies must demonstrate that they can control the risk posed by the chemical. In contrast, TSCA places the burden on EPA to determine whether data about chemicals is needed. Under TSCA, if EPA determines that a chemical poses an “unreasonable risk of injury to health or the environment,” EPA can regulate the manufacturing, distribution, and use of those chemicals.
If EU chemical regulations are harmonized downward to the level of US chemical regulations, which is a distinct possibility, it would be problematic for both the EU and for proponents of more stringent industrial chemical regulation in the US. Chemicals in the US market that were grandfathered in when TSCA was passed may no longer require regulation in the EU, and EU companies may no longer have the burden of proof to demonstrate the safety of their products. REACH provides data on chemical hazards and uses, information on possible alternative regulatory schemes, political and market pressure for US reform, and a market for US firms with safer products. Thus, downward harmonization that weakens REACH could impact reform of the US chemical regulation system. Ultimately, advocates for more stringent chemical regulation in the US will be better served by respecting REACH, rather than weakening it.
 Donahue, Alexander M. Equivalence: Not Quite Close Enough for the International Harmonization of Environmental Standards. 30 Envt’l L. 363 (2000).
 Daryl Ditz, Center for International Environmental Law (CIEL), The European Union’s New Law for Registration, Evaluation and Authorization of Chemicals, ALI-ABA International Environmental Law, April 12, 2007.