In summer 2016, Congress passed amendments to the Toxic Substances Control Act (“TSCA”) more than forty years after it first passed the law, and the Frank R. Lautenberg Chemical Safety for the 21st Century Act (“LSCA”) became law on June 22, 2016. The new law, the first major U.S. environmental law in decades, was widely lauded by the American Chemistry Council and other industry groups, but somewhat less warmly received by consumer and public advocacy groups. This article will make the case that while the LSCA had the potential to move us toward a more health protective stance in our federal, chemical regulatory regime, stringent enforcement of the law in a health protective manner does not seem likely in the current political climate. Indeed, the EPA’s July 2017 implementation rules for review of existing chemicals and “Framework” documents for new chemicals vitiate many of the Act’s intended protections.
The article urges that regulating consumer chemicals and products to protect human health and the environment is an issue readily deserving of our attention, and this new law, embodied in the LSCA and accompanying regulation, does not adequately advance the cause.
I briefly review the literature that suggests that environmental causes account for many serious illnesses, including cancers, then explore existing and proposed mechanisms in our federal legal framework to regulate toxic substances to protect human health. I next provide an overview of the deficiencies in the “old” TSCA that the LSCA amendments sought to correct, and then outline the basic provisions of the LSCA and critique its initial implementation and what I perceive to be accompanying deficiencies. Finally, I envision a way forward with what I call a “proactive” stance to the regulation of toxic substances. Such a regulatory stance would couple existing law with greater information transparency, and market forces to encourage industry and regulators to better protect human health and the environment.