Mercury Case Has Implications for TSCA Revamp: Attorneys

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By Anthony Adragna

April 1 — A 2015 U.S. Supreme Court ruling on an Environmental Protection Agency regulation setting limits on mercury pollution could “impose unintended requirements” complicating the ability to regulate toxic chemicals, if congressional reform legislation is enacted as currently written, more than 30 legal experts wrote.

It is crucial for House and Senate lawmakers, currently in negotiations about how to reconcile two approaches to overhauling the Toxic Substances Control Act, to “make clear that EPA should not have to consider costs when deciding whether to regulate a chemical,” the law professors, legal scholars and other attorneys said March 31.

In 2015, the Supreme Court held the EPA should have considered compliance costs to utilities before determining it was “appropriate and necessary” to regulate them through its Mercury and Air Toxics Standards for power plants (Michigan v. EPA, 135 S. Ct. 2699, 2015 BL 207163, 80 ERC 1577 (2015)).

The group of legal scholars now argue that rationale could be interpreted to apply to chemical regulation as well, based on how the Senate legislation (S. 697) is currently written. They say the words “as appropriate” and “appropriate” appear throughout the bill's text.

“While S. 697 does not contain the phrase ‘appropriate and necessary,' there are several provisions requiring EPA to take actions ‘as appropriate' that could undercut directives to exclude cost considerations found elsewhere in the legislation,” the letter said.

“A court could extend the Supreme Court’s reasoning in Michigan v. EPA on ‘appropriate and necessary' to the use of ‘appropriate' in several sections of S. 697, imposing unintended requirements of cost considerations that in turn undermine EPA’s ability to effectively—and expeditiously—manage risks posed by harmful toxic chemicals,” the legal experts wrote.

Sent to Top Lawmakers

The letter comes as key Senate and House lawmakers work to reconcile differences between a broad Senate bill overhauling the nation's primary chemicals law (S. 697) with a narrower House version (H.R. 2576).

Two Senate Republican aides told Bloomberg BNA April 1 they are getting closer to merging the two bills, but there has been no breakthrough to date.

House and Senate staff have been working through “intense” negotiations in hopes of a deal. Both chambers passed their versions of chemical reform by overwhelming margins in 2015 .

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To contact the editor responsible for this story: Larry Pearl at

For More Information

A copy of the March 31 letter to lawmakers is available at

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