State Toxic Chemical Regulations at Risk in Upcoming Trade Negotiations
by Katie Weatherford, 10/3/2013
On Oct. 7, the United States and European Union will resume negotiations that began earlier this year over the Trans-Atlantic Free Trade Agreement (TAFTA). Since tariffs and quotas between the U.S. and EU are already quite low, the negotiations will focus primarily on reducing “non-tariff barriers” (such as differences in standards and regulations) to expand trade across the Atlantic. The United States Trade Representative (USTR) has noted that regulation of toxic substances will likely be raised during negotiations this fall.
The U.S. and EU each have diverging laws for regulating toxic chemicals, which will make this topic particularly challenging for negotiators. The EU’s chemical law, the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH), requires chemical manufacturers’ to demonstrate that their chemicals do not pose an unreasonable risk to public health and the environment prior to selling products containing those chemicals.
The primary U.S. chemical substances control law, the Toxic Substances Control Act (TSCA), is less stringent than REACH. TSCA requires that the U.S. Environmental Protection Agency (EPA) – rather than the chemical companies – determine if a chemical poses an unreasonable risk of injury to human health or the environment, and U.S. law does not mandate that these determinations be completed before a company's products appear on store shelves. Under the U.S. framework, EPA has only tested about 200 chemicals out of the 80,000 now in commercial use, and those assessments have resulted in partial restrictions on the use of just five chemicals.
Originally passed by Congress in 1976, TSCA’s weak and outdated provisions have made it practically impossible for EPA to regulate toxic substances. The Chemical Safety Improvement Act (CSIA), a bill to revise TSCA, was introduced on May 23 by the late Sen. Frank Lautenberg (D-NJ) and Sen. David Vitter (R-LA). Modernizing TSCA to improve the law’s outdated and unworkable provisions and better protect the public is long overdue. However, as the Center for Effective Government has explained, the proposed legislation, as currently written, fails to address several key deficiencies in the existing law and threatens to undermine state chemical safety laws and protections intended to fill the gaping holes in the federal law. As a result, the bill is currently stalled in committee and unlikely to move forward without major revisions, including eliminating provisions that would preempt state laws and regulations that protect the public from toxic chemicals in the face of insufficient action by EPA.
So what does this have to do with the upcoming trade negotiations? Since the trade negotiations are being carried out in secret with hundreds of industry representatives and only a few public interest delegates, it appears the goal is to make it easier for chemical companies to manufacture, produce, and sell chemicals on both sides of the Atlantic. Even if an improved CSIA makes it out of committee, the U.S.-EU trade agreement could include provisions that preempt state laws and regulations.
Therefore, when trade negotiations resume on Oct. 7, it is crucial that U.S. trade representatives preserve the authority of states to adopt and enforce stronger chemical protections. Once the federal government has set minimum standards, states must be able to impose stricter standards that they determine are needed to protect the health and welfare of their residents. Any legislation or trade agreement that overrides state chemical regulations would represent a major step backward in protecting the public’s health and the environment.
Update (10/4/13): Due to the federal government shutdown, the October 7 trade negotiation sessions have been postponed but will resume once the federal government shutdown ends.