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Obama and EPA Take on TSCA Reform

February 2010

Citation: 40 ELR 10123

Issue: 2

Author: Brett H. Oberst, Lynn N. Hang, and Lindsay K. Larris

Environmental policy was a key issue during the presidential campaign in 2008. Then-Sen. Barack Obama pledged a major change in U.S. environmental policy: "We cannot afford more of the same timid politics when the future of our planet is at stake." In 2009, President Obama has started to deliver on his promise. From the treatment and storage of nuclear waste, to the programs implemented to slash carbon emissions, to the American Recovery and Reinvestment Act's inclusion of funds for environmental research and green-collar job creation, it is becoming apparent that this president is serious about environmental reform.

The Obama Administration's most recent focus has included the Toxic Substances Control Act (TSCA). President Obama has said that he wants the U.S. Congress to reauthorize and significantly strengthen the effectiveness of TSCA. That means that for the first time in 34 years, the law regulating toxic chemicals faces a potential major transformation.

Since the adoption of TSCA in 1976, the U.S. Environmental Protection Agency (EPA) has issued regulations to control only five chemicals. On September 29, 2009, EPA Administrator Lisa Jackson said there are "troubling gaps" in the available data on many widely used chemicals. "Many are turning to government for assurance that chemicals have been assessed using the best available science, and that unacceptable risks haven't been ignored," Jackson said. "Right now, we are failing to get this job done."

While environmental advocacy organizations and industry alike have applauded EPA's intention to reform TSCA, deciding how to reform this law will be far more complicated. Several key issues will likely be at the center of the debate, including what safety standard Congress should require EPA to apply, how EPA should prioritize chemicals to be regulated, and how Congress should address the potential economic impact of these reform efforts on both manufacturers and those downstream of the manufacturing process. Resolution of these issues will significantly shape the new legislation and determine its impact.

Brett Oberst is Of Counsel and Lynn Hang and Lindsay Larris are associates at Gibson Dunn & Crutcher LLP.

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