Trade Groups Split on Chemicals, Trump’s Pick for EPA

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By Pat Rizzuto

Dec. 13 — Trade associations have divergent views on whether the doubts on climate change voiced by Scott Pruitt, President-elect Donald Trump’s pick to lead the Environmental Protection Agency, may undermine public confidence in the scientific credibility of decisions on chemicals the agency would make under Pruitt.

The American Chemistry Council, a trade association that represents major U.S. chemical manufacturers, issued a statement Dec. 8 welcoming Trump’s nominee, who is currently Oklahoma’s attorney general.

“We share Mr. Pruitt’s view that EPA’s regulatory decisions should be based on sound scientific evidence, and we look forward to working with the new EPA Administrator and the dedicated staff at the EPA to implement the nation’s key environmental statutes in a fair, efficient and effective manner,” the group said.

But David Levine, chief executive officer of the American Sustainable Business Council, told Bloomberg BNA Pruitt’s views could harm chemical and other businesses.

Not All Science Positions Are Equal

In a May 17 National Review article, Pruitt wrote: “global warming has inspired one of the major policy debates of our time. That debate is far from settled. Scientists continue to disagree about the degree and extent of global warming and its connection to the actions of mankind.”

That statement, Levine said, treats the scientific positions on climate change as equal even though climate scientists are nearly unanimous in their conclusion that human activities are contributing to climate change. According to NASA, 97 percent or more of climate scientists agree climate-warming trends likely result from human activities.

Science should form the basis of the EPA’s chemical and other decisions, Levine said.

If science as solid as that behind climate change is dismissed, it undermines the realities that companies already are addressing, Levine said.

He pointed to concerns small businesses voiced in a 2012 survey Lake Research Partners conducted of 511 companies across the U.S.

More than half of all business owners—53 percent—believe climate change will adversely affect their business, that survey found.

One in five companies say extreme weather events associated with climate change already have affected their operations, Levine said.

Three-quarters of those companies also supported stricter regulation of chemicals used in products, according to the survey.

If a minority scientific position is given as much credence as one held by the vast majority of scientists, that creates uncertainty in the marketplace, which is bad for business and bad for consumers, Levine said.

EPA’s Scientific Integrity

Lynn Bergeson, managing partner of Bergeson & Campbell PC, a Washington D.C.-based law firm that specializes in chemical and pesticide regulations, said the science requirements with the amended Toxic Substances Control Act are solid.

“Call me crazy, but I continue to think ‘scientific standards’ as defined under TSCA Section 26(h) will continue to be applied as envisioned by Congress,” Bergeson told Bloomberg BNA.

Section 26 of amended TSCA requires the EPA’s science decisions to be developed in a manner “consistent with the best available science.”

The provision requires the EPA to consider issues such as the relevance of scientific information for the decision being made; the reasonableness of the science for the intended use; the extent to which it has been peer reviewed; and variability and uncertainty of the science. EPA decisions must be “based on the weight of the scientific evidence.”

“Under a Trump administration,” Bergeson said, “EPA may be more predisposed to interpreting this provision and others in a way that might be more aligned with industry’s views, but the process will continue to be scientific, disciplined, and consistent with the law’s mandate.”

“I do not envision the Trump administration as necessarily telegraphing science that is so demonstrably devoid of merit that it will undermine the public’s confidence in EPA’s risk assessment processes or in EPA generally as the federal institution tasked with protecting the environment. I have more confidence in the scientific integrity of EPA and its scientists to let that happen,” Bergeson said.

States Rights v. Federal Preemption

The extent of federal preemption of state chemical regulations was a central issue as Congress debated the changes that lead to TSCA reform and continues.

In its statement, the American Chemistry Council supported implementation of TSCA and “the role of the federal government in chemical regulation.”

During the TSCA reform debate, however, states such as California that had stepped into the vacuum left by the EPA’s failure to regulate chemicals before TSCA was amended argued that states must continue to have the right to regulate chemicals.

Legal challenges Pruitt has filed as Oklahoma attorney general show he has taken divergent positions on states’ rights versus federal supremacy.

Lawsuits Pruitt has brought against the EPA’s greenhouse gas and water regulations largely have been based on issues such as states’ rights.

In a December 2014 brief, he and Nebraska’s attorney general filed against Colorado’s legalization of marijuana, however, he argued in support of the Constitution’s supremacy clause, which holds federal laws constitute the supreme law of the land ( Nebraska v. Colorado, U.S., No. 144, ORIG., 12/18/14).

Daniel Rosenberg, senior attorney for the Natural Resources Defense Council, told Bloomberg BNA his organization hopes Pruitt will not abandon his long-standing support for states when it comes to chemical regulations.

States need to retain the right to take action when the EPA has not or when the federal agency’s actions would fail to protect human health or the environment, he said.

Litigation

Public health and environmental advocates have a critical role to play to ensure their concerns are addressed regardless of who is confirmed as the EPA’s administrator, Rosenberg said.

They must ensure the rulemaking record reflects information that supports health protective decisions, Rosenberg said.

He referred to numerous regulations the EPA is required to implement under the amended chemicals law.

“Whatever decisions are made are likely to be subject to litigation whether it’s brought by industry or public interest groups,” Rosenberg said.

If the EPA has received information that supports public and environmental health decisions, it will be easier to compel regulatory or legal decisions that also are supportive, he said.

To contact the reporter on this story: Pat Rizzuto in Washington, D.C. at prizzuto@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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