Regulating toxic chemicals: Globalization can raise the bar
Industrial nations have struggled for decades with how to regulate chemicals that have long been in use and have become widespread in the environment. Now the European Union is reaching for an answer -- and it may pull the rest of the developed world along with it.
Called REACH, for Registration, Evaluation and Authorization of Chemicals, Europe's new approach to chemical regulation begins in January and will be phased in over an 11-year period.
"It's very new, and it's very European," said John Applegate, the Walter W. Foskett Professor of Law at the Indiana University School of Law—Bloomington. Applegate is a distinguished scholar of environmental law who has published articles, book chapters and a book on U.S. and European chemical regulation.
REACH requires producers and importers of chemicals used in Europe to provide information about the substances and to demonstrate that they are safe. And it incorporates what regulators call "the precautionary principle" -- regulation of a chemical need not await full proof of its dangers.
"The new legislation puts the burden on the manufacturer to prove safety or to justify its continued use, as opposed to putting the burden on the government to prove un-safety," Applegate said.
In the United States, the landmark federal chemical regulation law is the 1976 Toxic Substances Control Act (TSCA), which gave the government the authority to ban or restrict the use of certain chemicals. But while TSCA was based on a thoughtful government white paper, the enactment process weakened it considerably, and it has run into a buzz saw in the courts.
It "is widely regarded as a serious under-performer among United States environmental laws," Applegate writes in a paper comparing TSCA and REACH. (Critics sometimes call it the "Toxic Substances Conversation Law" -- it gets government to talk about chemicals, not to do anything about them).
One problem is that many potentially hazardous chemicals have largely escaped regulation because they were in widespread use before TSCA took effect. In some cases, such chemicals persist in the environment and "bioaccumulate" in the tissues of humans and other animals, sometimes with unknown health effects.
REACH, Applegate says, is in some ways "the anti-TSCA." Not only does it put the burden of proof on industry to provide information about chemicals and show they are safe, but it eventually will apply the same standards to old and new chemicals in an effort to get rid of the "burden of the past." The goal is to create a level playing field between old and new, so that industry will have an incentive to phase out dangerous substances and replace them with safer ones.
Under REACH, manufacturers and importers will be required to pull together information on their chemicals and register it in a central database run by the European Chemicals Agency in Helsinki, Finland. Chemicals that pose health or environmental threats will be evaluated to determine if their use should be authorized and, if so, what safeguards should apply.
But REACH is no anti-industry measure, Applegate said. It was developed jointly by the Environment and the Enterprise and Industry directorates of the European Commission, the executive body of the European Union; and its primary objectives include not only protection of human health and the environment, but also maintenance and enhancement of public confidence in the European chemical industry.
Another objective is to make regulation more transparent -- in part by putting information about chemical risks on the Internet, where it will be available not only to Europeans but to people around the world. Such "globalized information" could provide leverage for those pushing for long-overdue reform of TSCA in the U.S., Applegate said.
Meanwhile, chemical companies in America and the developing world will have a market incentive to raise their standards to Europe's expectations."In a global industry," Applegate said, "you simply can't ignore one of the largest markets in the world."
And at the same time, the European information that is being placed on the Internet will be available to anyone anywhere for regulatory or litigation purposes. Globalization is not always good for the environment, Applegate said, but this is an important example of the way that globalization can help to raise environmental standards across countries.
