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Dispersant Scrutiny Mirrors Larger Debate Over U.S. Chemical Control Policy

November 2010

Citation: ELR 11142

Author: Charles L. Franklin

Dispersants have been a critical oil spill response tool for decades, used in at least 66 documented spill responses worldwide, and 25 spills in or near U.S. waters. Oil dispersants can reduce the coastal impact from a spill, hasten the post-spill recovery process for affected waters and shores, and reduce the need to resort to other, more damaging response methods. For most of their history, dispersants have held a low profile in the public consciousness. Dispersants remained technical footnotes to the spills themselves--until the Deepwater Horizon disaster.

At times during the months-long response in the Gulf, public and media scrutiny of dispersant use rivaled the attention given to the spreading oil. This scrutiny likely resulted, in part, from the unprecedented size and scope of the Deepwater Horizon release and the use of dispersants at unprecedented depths and untested conditions. At a more fundamental level, however, concerns regarding federal dispersant policy reflect the tensions that have been raised with federal chemical control policy as a whole.

The chemicals used in dispersants, like so many of the chemicals used in commercial, industrial, and personal products, have become critical--even indispensible--to modern society. Few members of society have the option, let alone the inclination, to go chemical-free in their personal, work, or school lives. At the same time, few members of society have the resources to assess independently the risk of each chemical product they use or encounter in daily life. Instead, individuals rely upon their government systems to regulate the import, manufacture, and use of chemicals throughout the marketplace and economy, and to provide relevant information about the risks and benefits. As confidence in such regulatory systems dissipates, it should come as no surprise that concerned stakeholders call for more structure and certainty in the regulatory process.

This Article reviews the recent scrutiny of oil spill dispersants in the context of the larger and more long-standing debate over whether and how to update the nation's core chemical control law and policies, as embodied in the Toxic Substances Control Act (TSCA). The Article then identifies some of the likely policy issues reform advocates will have to address to make progress on either issue.

Charles L. Franklin is a counsel at the law firm of Akin Gump Strauss Hauer & Feld, LLP, and the incoming chair of the American Bar Association's Committee on Pesticides, Chemical Regulation, and Right-to-Know.

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