Should the EPA Regulate under TSCA and FIFRA to Protect Foreign Environments from Chemicals Used in the United States?
Fein, Ronald, Stanford Law Review
The blood, fatty tissue, breath, and urine of nearly every human being on the planet are contaminated with a wide range of synthetic chemicals invented in the last century. For example, on a recent television special, the blood and urine of journalist Bill Moyers were tested for a variety of chemical contaminants. Eighty-four were found, including polychlorinated biphenyls (PCBs), dioxins and furans, phthalates, DDT, and various other pesticides and volatile organic compounds. (1) Many have not been manufactured in the United States for years.
Surprisingly, this contamination is not limited to industrial or agricultural regions. To be sure, people with the highest body burdens often work in, or live near, chemical factories or farms. But scientists who tried to find a less-exposed control group, and looked to isolated Inuit populations of the Canadian Arctic, were shocked to learn that these remote Northerners have among the highest chemical exposure levels of any group on Earth. (2) This discovery is particularly striking because the high Arctic has few sources of these chemicals. Consider, for instance, Arctic Canada's Broughton Island. It lies "more than sixteen hundred miles from the smokestacks of southern Ontario, and twenty-four hundred miles from the industrial centers in Europe," yet its Inuit residents bear "the highest levels of PCBs found in any human population except those contaminated in industrial accidents." (3) The story is similar with other long-lived, dangerous chemicals, known collectively as Persistent Bioaccumulative Toxic substances (PBTs).
The United States has its own reasons for restricting the production and use of these substances, which present health and ecological risks in the continental United States as well as in the Arctic. Furthermore, several recent treaties have restricted production, use, and trade in PBTs at an international level. But international conventions lag domestic regulation, and in the meantime, chemicals used here can and do affect human health and the environment in other countries, particularly in the Arctic. This Note explores the regulatory ramifications of the effects caused abroad by PBTs made, used, and perhaps disposed of within the United States. Should, can, and/or must the Environmental Protection Agency (EPA) take these effects into account when making domestic regulatory decisions?
Part I of this Note analyzes the problem of foreign health and environmental effects of PBTs used here, particularly the contamination of Arctic humans and wildlife. Part II focuses on the two primary statutes governing PBT production and use in the United States: the Toxic Substances Control Act (TSCA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Plausible (if not overwhelming) arguments exist that TSCA and FIFRA already authorize the EPA to consider foreign health and environmental effects. However, they certainly do not require the EPA to do so, and in fact the EPA does not. Part III shifts focus to the international arena and examines three relevant agreements: the Convention on Long-Range Transboundary Air Pollution, its 1998 Protocol on Persistent Organic Pollutants, and the more recent Stockholm Convention on Persistent Organic Pollutants, which provides for the first time a broad international framework for restricting PBT production and use.
Finally, Part IV examines the EPA's obligations for future PBT regulation in light of these agreements. The Stockholm Convention creates an international obligation to regulate with foreign health and environmental effects in mind. Unfortunately, neither of the two competing bills introduced in the Senate to implement the Stockholm Convention addressed this question. However, even without implementing legislation, the Convention probably gives the EPA the authority to consider foreign impacts when regulating under TSCA and FIFRA.
This Note draws several conclusions in answer to the fundamental questions posed. …