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A Toxic Consensus on Toxic Substances?

In reality, the court overturned the EPA’s total asbestos ban because the agency could not scientifically justify the regulation as TSCA (exposure and use of asbestos are regulated by Occupational Safety and Health Administration and other EPA regulations). The court opinion in Corrosion Proof Fittings v. EPA stated: “We conclude that the EPA has presented insufficient evidence to justify its asbestos ban. We base this conclusion upon two grounds: the failure of the EPA to consider all necessary evidence and its failure to give adequate weight to statutory language requiring it to promulgate the least burdensome, reasonable regulation required to protect the environment adequately.” For example, the court noted that the EPA rule could have increased fatalities because the agency failed to consider the inadequacy of substitutes for asbestos used in automobile brakes. By signing on to misguided TSCA reform, industry and conservatives on the Hill are likely to repeat a colossal error they made in 1996 when they “modernized” the nation’s pesticide law.

During the 104th Congress, agricultural interests, chemical producers, and conservative Republicans worked with the left to replace the 1958-passed “Delaney Clause.” The Delaney Clause is a near zero-risk regulatory standard applied to pesticide residues found on processed food. Improved ability to measure pesticide levels at the time meant that the feds would have to start banning a number of products to meet the near zero-risk standard. The new law was supposed to save these products by replacing Delaney with a more reasonable “modern” standard for pesticides.

Republican and moderate Democrats from agricultural states as well as agricultural industry representatives argued that new law would allow for quicker pesticide approvals, fewer bans, and would help farmers produce a “safe and affordable” food supply. That’s not what happened. They passed the Food Quality Protection Act (FQPA), which set in place an overly precautionary standard. It demands that products meet a “reasonable risk of no harm” standard and employ numerous, other safety factors to ensure products are thousands of time safer than necessary to protect health. The new standard is arguably more stringent than the Delaney Clause. An article entitled "Wake-up Call" in California Farmer explained shortly after FQPA became law:

No, you may not gain peace of mind when discovering that the new standard is stricter than Delaney, at least the way EPA and FDA was interpreting it […]. Delaney was interpreted as posing a one in a million chance of additional cancer cases from all crop uses of a pesticide. The new, tougher standard -- "a reasonable certainty of no harm to sensitive populations" -- applies to all pesticides, not only cancer-causing ones.

Ironically, the FQPA is one of the models that greens would like TSCA reform to follow -- despite the fact that it has proven disastrous. Under the FQPA, the EPA has banned and restricted the use of thousands of pesticides -- the opposite of what lawmakers desired. In 2006, for example, the EPA completed a 10-year study of 230 organophosphates and carbonates pesticides. It concluded FQPA standards demand that the agency ban 3,200 uses of pesticide products in these categories alone and place restrictions on 1,200 other uses. It deemed 5,237 uses as “safe” under the act. Meanwhile, pest problems are on the rise as fewer and fewer pesticides are available or under development. Many cities around the nation, for example, are scrambling for solutions to bed bug problems in hotels, retirement communities, schools, stores, and homes -- but there are few products left to control them. TSCA reform is heading down the same path, and if enacted will promote more precautionary legislation for EPA programs as well as at other federal agencies. In fact, the activists pushing TSCA reform are also pushing precautionary policies elsewhere.  In particular, the Campaign for Safe Cosmetics wants the FDA to dispense with science in favor of caution, and precautionary chemical legislation is moving in 30 states -- as noted on the activist website saferstates.com.

Margaret Thatcher once explained that “consensus seems to be the process of abandoning all beliefs, principles, values and policies.” The Iron Lady was right about many things, this included; principled lawmakers should heed her warning now.