01/17/2025

Courts Play Key Role on Chemicals as New Suits Await Under Trump

BNA Environment & Energy Report | Pat Rizzuto | Jan. 16, 2025

Courts Play Key Role on Chemicals as New Suits Await Under Trump

Courts will continue to play critical roles as the EPA’s chemical and pesticide office transitions from the outgoing Biden to the incoming second Trump administration.

Three settlements since 2023 set deadlines mandating Environmental Protection Agency decisions about whether chemicals must be regulated and developed paths forward to better protect endangered species and obtain data about pesticides’ potential to mimic, block, or alter critical functions of certain hormones.

Negotiating dispute-resolving strategies and calendars with litigants and enshrining them in settlements that would have to be renegotiated if the next administration sought to alter them helps ensure the agency meets its commitments, Michal Ilana Freedhoff, outgoing assistant EPA administrator for chemical safety and pollution prevention, said in a recent interview.

These agreements show a role litigation has and will continue to play as lawsuits challenging the EPA’s recent interpretation of new Toxic Substances Control Act (TSCA) requirements proceed, according to chemical and pesticide policy specialists.

Congress’s revised TSCA, the nation’s primary commercial chemicals statute, became law in 2016 and required the EPA to review and regulate chemicals posing “unreasonable risk.” Lawmakers also required the EPA to make new safety findings before allowing new chemicals into the US.

Debated EPA interpretations of TSCA under President Joe Biden include decisions about whether a chemical is entirely too risky, instead of whether specific uses of it are; the level of risk that’s unreasonable and must be controlled; and appropriate worker protection strategies.

Every existing chemical rule the EPA has issued has been challenged as being overly cautious or offering inadequate protections.

Policy Stage

Meanwhile, the EPA’s staff, as it normally does, is working with the transition team to pave the way for President-elect Donald Trump’s second administration.

Transition members that staff have met include Lynn Ann Dekleva, an American Chemistry Council manager who served in the agency’s chemicals office during Trump’s first administration, according to an internal agency memo that circulated Wednesday seen by Bloomberg Law.

Topics discussed include ways the EPA could meet statutory deadlines set by its pesticides and chemicals law. Meeting TSCA’s deadlines was a top priority during Trump’s first administration.

EPA staff are introducing transition team members to procedural improvements made in recent years and the office’s need for more resources, the memo said. Staff also are preparing for the “First Team” of political appointees to arrive next week. Those appointees help the new administration, but don’t always remain.

The EPA’s new chemicals division, which reviews chemicals never made in or imported into the US but developed to provide new functions and aid new technologies, has made procedural improvements and is “performing fantastically in terms of speed,” Freedhoff said. Chemical makers have criticized the agency’s pace since the TSCA amendments first required staff to make and publicly announce safety conclusions.

The agency has begun to review new chemicals faster, said Richard Engler, chemistry director at Bergeson & Campbell PC, during a recent webinar the law firm held.

But roughly 90% of new chemicals are regulated, he said, referring to a major change that’s occurred under the amended law. “We don’t expect that to change absent litigation or legislative change,” because the new chemicals process the agency has used since the amendments is “pretty well baked in,” he said.

Legislative Change

Yet, the agency’s practice of issuing orders—that become regulations—when it finds any possible concern beyond a low human health or environmental hazard “is an impermissible, hazard-based approach,” Engler said prior to the webinar.

It renders meaningless the law’s requirement that the agency review “reasonably foreseen” potential problems, “because everything is foreseeable,” he said. “EPA appears to be regulating to achieve reasonable certainty of no harm, a standard that Congress explicitly rejected” when it amended the chemical statute, he said.

Revising amended TSCA’s new chemical requirements and legislating improvements that secure more timely reviews may be possible under the current Congress, said David Fischer, of counsel with Keller and Heckman LLP. The statute tasks lawmakers with reviewing by September 2026 new chemical and other fees chemical manufacturers must pay, and statutory changes could be part of that, he said.

The fee review also opens the door to Congress reconsidering the law’s requirement that the EPA eliminate a chemical’s unreasonable risks, even if costs exceed benefits, he said. “I believe costs and benefits should be an integral part of how much unreasonable risk is reduced.”

“Any effort to reopen the law would be incredibly premature,” said Jonathan Kalmuss-Katz, a staff attorney at Earthjustice, a nonprofit public interest environmental law organization. The statute is in the early stages of implementation with the first mandated chemical restriction rules being released and court interpretations of the law’s intent to come, he said.

Earthjustice’s priorities under Trump will be the same as they were during the Biden administration, he said. They include fighting to “hold to the letter of the law, provide all of the protections that TSCA requires, comprehensively evaluate chemicals, and eliminate their unreasonable risk.”

Any attempt to “water down scientific findings” or exclude ways certain groups of people can be exposed to chemicals that could harm them would violate the law, Kalmuss-Katz said.

Protecting people is a key reason Congress amended TSCA, which had failed to do that, said Freedhoff, who as a Democratic legislative staffer helped negotiate the update.

Of all her efforts to negotiate and then implement that law, the EPA’s regulation of a known human carcinogen, trichloroethylene (TCE), has been the most personal, she said.

Freedhoff said she “grew up” professionally working for Sen. Ed Markey (D-Mass.). That gave her insight into how Woburn, Mass., residents like Anne Anderson lost their children to leukemia caused by TCE contamination.

Original TSCA, which became law in 1976, failed to control chemicals like that, Freedhoff said. She was driven by her desire to give a life to children like Anderson’s son Jimmy, who would have been a year younger than Freedhoff had he lived. “That’s why we do these jobs, right?”