Should the EPA regulate under TSCA and FIFRA to protect foreign environments from chemicals used in the United States?

• Author: Fein, Ronald
• Position: Toxic Substances Control Act; Federal Insecticide, Fungicide, and Rodenticide Act

INTRODUCTION

The blood, fatty tissue, breath, and urine of nearly every human being on the planet are contaminated with a wide range of synthetic chemicals invented in the last century. For example, on a recent television special, the blood and urine of journalist Bill Moyers were tested for a variety of chemical contaminants. Eighty-four were found, including polychlorinated biphenyls (PCBs), dioxins and furans, phthalates, DDT, and various other pesticides and volatile organic compounds. (1) Many have not been manufactured in the United States for years.

Surprisingly, this contamination is not limited to industrial or agricultural regions. To be sure, people with the highest body burdens often work in, or live near, chemical factories or farms. But scientists who tried to find a less-exposed control group, and looked to isolated Inuit populations of the Canadian Arctic, were shocked to learn that these remote Northerners have among the highest chemical exposure levels of any group on Earth. (2) This discovery is particularly striking because the high Arctic has few sources of these chemicals. Consider, for instance, Arctic Canada's Broughton Island. It lies "more than sixteen hundred miles from the smokestacks of southern Ontario, and twenty-four hundred miles from the industrial centers in Europe," yet its Inuit residents bear "the highest levels of PCBs found in any human population except those contaminated in industrial accidents." (3) The story is similar with other long-lived, dangerous chemicals, known collectively as Persistent Bioaccumulative Toxic substances (PBTs).

The United States has its own reasons for restricting the production and use of these substances, which present health and ecological risks in the continental United States as well as in the Arctic. Furthermore, several recent treaties have restricted production, use, and trade in PBTs at an international level. But international conventions lag domestic regulation, and in the meantime, chemicals used here can and do affect human health and the environment in other countries, particularly in the Arctic. This Note explores the regulatory ramifications of the effects caused abroad by PBTs made, used, and perhaps disposed of within the United States. Should, can, and/or must the Environmental Protection Agency (EPA) take these effects into account when making domestic regulatory decisions?

Part I of this Note analyzes the problem of foreign health and environmental effects of PBTs used here, particularly the contamination of Arctic humans and wildlife. Part II focuses on the two primary statutes governing PBT production and use in the United States: the Toxic Substances Control Act (TSCA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Plausible (if not overwhelming) arguments exist that TSCA and FIFRA already authorize the EPA to consider foreign health and environmental effects. However, they certainly do not require the EPA to do so, and in fact the EPA does not. Part III shifts focus to the international arena and examines three relevant agreements: the Convention on Long-Range Transboundary Air Pollution, its 1998 Protocol on Persistent Organic Pollutants, and the more recent Stockholm Convention on Persistent Organic Pollutants, which provides for the first time a broad international framework for restricting PBT production and use.

Finally, Part IV examines the EPA's obligations for future PBT regulation in light of these agreements. The Stockholm Convention creates an international obligation to regulate with foreign health and environmental effects in mind. Unfortunately, neither of the two competing bills introduced in the Senate to implement the Stockholm Convention addressed this question. However, even without implementing legislation, the Convention probably gives the EPA the authority to consider foreign impacts when regulating under TSCA and FIFRA.

This Note draws several conclusions in answer to the fundamental questions posed. First, the United States has an international obligation, under venerable prohibitions against transboundary harm and their recent codification in the Stockholm Convention, to prevent contamination of foreign countries by PBTs. Second, this international obligation includes regulating production and use of chemicals (new and old) to prevent PBTs from being introduced into the environment. Third, the EPA has the authority under TSCA and FIFRA to regulate to prevent or minimize that contamination; this authority might have existed even before the recent international agreements and almost certainly exists now. However, despite the United States's international obligation to consider foreign effects in its chemical regulatory programs, and the EPA's statutory authority to fulfill that obligation, the EPA does not have a domestically enforceable obligation to consider those effects. Put simply, without further legislation, the United States's international obligation cannot be enforced against the EPA in a U.S. court. Nevertheless, this Note argues that it makes good policy sense for the EPA to consider, to a limited extent, extraterritorial environmental risks when making TSCA and FIFRA decisions.

These questions are a particular instance of a more general concern. When American productive activity generates adverse health or environmental consequences abroad, and a federal agency has jurisdiction over the domestic consequences of the activity, should the agency cast its regulatory net more broadly to incorporate these externalities? Should it "voluntarily" consider extraterritorial costs in formulating regulatory standards? This Note concludes that, for PBTs, the EPA has the authority (but not the duty) to do so. Thus, the arguments here are ultimately addressed not to a court, but to the EPA itself.

1. THE PROBLEM: PBTS MADE AND USED HERE HAVE EFFECTS ABROAD

   This Part provides the factual background for the legal questions at the heart of this Note. First, Part I.A provides a brief background on PBTs, reviewing their typical characteristics and the particular substances of greatest current concern. Next, Part II.B delves into the "use locally, contaminate globally" problem, focusing on the case of the Arctic, where both wildlife and humans have been affected by long-range environmental transport of pesticides, industrial chemicals, and unintentional byproducts from the continental United States.

   1. Persistent Bioaccumulative Toxic Chemicals

1. Characteristics of PBTs.

   Persistent bioaccumulative toxic chemicals (PBTs) have already been described in the legal (4) and lay (5) literature, and their key characteristics will be only briefly reviewed here. The term PBT (6) describes a broad set of chemicals that share the properties of persistence (resistance to natural decomposition), bioaccumulation (long-term storage in living tissue coupled with increased concentrations in successively larger predators), and toxicity (harm to life through carcinogenicity, endocrine interference, or other mechanisms). (7) A chemical must possess all three properties to be classified as a PBT. (8)

   Persistence. PBTs do not readily break down to safer chemicals via natural processes, either outdoors or in living tissue. Perhaps ironically, this characteristic, a curse from a biological perspective, was historically prized in industrial chemicals. For example, polychlorinated biphenyls (PCBs) were once highly valued for being nonflammable and extremely stable. (9) The more heavily chlorinated PCBs are completely resistant to nearly everything except the sun's ultraviolet-B radiation. (10) Since PCB molecules often move through the environment buried in soil or animal tissues, they tend to escape the sun and hence persist nearly indefinitely. (11)

   Bioaccumulation. PBTs also persist in living tissue, and accumulate there at higher concentrations than found in the outside environment. Their persistence prevents breakdown to water-soluble substances, and their fat-solubility prevents excretion. (12) Furthermore, their concentrations magnify dramatically at higher food chain levels. While a small herbivore may accumulate only a small lifetime "body burden," each subsequent predator, one step up the food chain, accumulates a total body burden many times that of any individual prey. For instance, consider the bioaccumulation and biomagnification of PCBs, starting from a lake containing some PCB molecules deposited by airborne drift. The PCB concentrations of a water flea that eats tiny plants (to which PCB molecules adhere) will reach four hundred times the concentration in the water; the concentrations in a smelt, two levels up the food chain, are almost seven thousand times that of the water; in a herring gull, two levels higher, twenty-five million times that of the water; and in the polar bear, a top predator, three billion times that of the original water. (13)

   Toxicity. PBTs are toxic to human and animal life. Traditionally, toxicity was considered in two forms: acute toxicity from high-dose exposure, and long-term carcinogenicity from sustained exposure. Many PBTs cause, or are suspected of causing, these effects. (14) In recent years, however, scientists have begun to focus on the endocrine (hormone) system and the effects of certain chemicals, sometimes called "endocrine disruptors," that interfere with its natural function. (15) Endocrine interference from PBTs can result in reproductive, neurological, and immunological damage. (16) Most strikingly, studies over the past two decades, from both the lab and the wild, show that dramatic, lifelong impacts can result from even one exposure to a minuscule dose of certain chemicals, if delivered at the right developmental stage. (17)

2. PBTs of greatest concern.

   There is no single, definitive list of PBT chemicals. In fact, most chemicals (synthetic or natural) have never been tested for any measure of toxicity other than acute exposure. There...