At the 1992 Earth Summit in Rio de Janeiro, toxic chemicals were recognized as a serious threat to sustainable development. Governments and civil society responded with an array of international treaties, regional agreements, and diverse national efforts to reduce the impacts on human health and the global environment from dangerous substances. For many years the United States played an important role in furthering these international efforts. Yet in one important respect, the United States still lags behind. After three decades of experience with the federal Toxic Substances Control Act (“TSCA”), the United States lacks effective national legislation to manage industrial chemicals within its own borders. This Article examines the unfortunate stagnation of U.S. chemical policy and the resulting response by many state governments that are acting to protect their citizens from the pervasive dangers of industrial chemicals. This bottom-up pressure, combined with accelerating international progress, sets the stage for a long overdue overhaul of U.S. federal policy on chemicals.
The rise of state activism on toxic chemicals reflects the convergence of three powerful forces. First, scientific evidence is rapidly accumulating that hundreds to thousands of chemicals once deemed safe actually threaten public health. This includes new research examining the subtle biological and ecological consequences of chemicals at low concentrations, as well as a growing awareness of chemical exposures in industrialized countries and in regions far removed from polluting sources. Second, these state actions are a direct reaction to profound legal and political obstacles preventing an effective federal response. Third, these state actions are often inspired and bolstered by parallel international developments, including regulatory actions by other countries, multilateral treaties and other agreements, and corresponding shifts in global markets. Taken together, efforts by the states are driving the eventual reform of U.S. federal policy on chemicals and making an important contribution to sustainable development.
Before examining the nature of these state actions and their relationship to U.S. federal law, it is important to clarify the scope of chemicals policy. In contrast with environmental laws on air pollution, water pollution, and hazardous wastes that preceded or followed enactment of TSCA in 1976, chemical policy aims to influence the basic ingredients of our industrial economy. At least in intent, chemical policy shares a common outlook with laws governing the pre-market approval of new medicines. While pharmaceutical and agricultural chemicals are explicitly exempted from TSCA, so-called “industrial” chemicals are not confined to industrial uses alone. Indeed, the tens of thousands of chemicals under the purview of TSCA are routine constituents of myriad commercial and consumer products from household cleaners to computers, from cosmetics to construction materials. The authority for implementing TSCA rests with the U.S. Environmental Protection Agency (“EPA”) and is not delegable to the states. Generally speaking, states are authorized under TSCA Section 18 to prohibit uses of chemicals that EPA has not regulated.