The roles of precaution and political accountability in the regulation of polybrominated diphenyl ethers.

• Author: Brim, Danielle

ABSTRACT

The differing approaches used in the United States and the European Union to regulate toxic chemicals have been highlighted by debates about a group of chemicals called polybrominated diphenyl ethers, or PBDEs. PBDEs act as flame-retardants and are added to consumer products to increase their safety. Questions about the continued use of PBDEs have been raised, however, because of concerns that PBDEs may be dangerous to human health and the environment. The European Union has decided to ban two types of PBDEs, while the United States has not issued similar restrictions. In this Note, the Author argues that neither decision is inherently correct or incorrect because deciding how much risk is acceptable is a policy decision. Consequently, the "right" decision is the one that reflects the will of the people who will benefit from, or bear the costs of, acting now versus waiting until later. This Note argues, however, that the United States should align its policy with that of the international community by taking a more precautionary approach because PBDEs used in the United States cause harm outside its borders.

TABLE OF CONTENTS I. INTRODUCTION II. OVERVIEW: HISTORY OF PBDES A. A Necessary Risk? B. The Dangers of Persistent Organic Pollutants (POPs) C. Restrictions and Bans on PBDEs III. PRECAUTION AS A BASIS FOR ACTION A. The Precautionary Principle B. The Use of Precaution in International Agreements IV. APPROACHES TO THE REGULATION OF TOXIC CHEMICALS A. Regulation of New Chemicals 1. Regulation of New Chemicals in the European Union 2. Regulation of New Chemicals in the United States B. Regulation of Existing Chemicals 1. Regulation of Existing Chemicals in the European Union 2. Regulation of Existing Chemicals in the United States C. Addressing the Problem of "Grandfathered" Chemicals V. THE EFFECT OF EU AND U.S. ENVIRONMENTAL POLICY ON PBDEs A. Evidence of Effects B. Evidence of Exposure C. Making the Decision VI. RESOLUTION: A MATTER OF CHOICE, WITH LIMITS A. Choice and Political Accountability B. POPs: Aligning U.S. Policy with the International Community VII. CONCLUSION I. INTRODUCTION

The use of chemicals in the modern industrial world is widespread. Ethyl vinyl acetate, octyl metnoxycinnamate, thiosulfate--attempting to pronounce the components of most products is a tongue twister in any language. Often these chemicals make the products consumers use better and their lives easier. Ethyl vinyl acetate absorbs shock in running shoes, octyl metnoxycinnamate is an active ingredient in sunscreen, and thiosulfate is used to develop photos. (1) Occasionally, however, the use of these chemicals has unanticipated consequences and creates dangers for human health and the environment. Unfortunately, questions about the safety of these chemicals generally are not raised until they have been in use for many years, and by that time the benefits of continued use must be weighed against the costs of potential harm.

The difficulties posed by these questions are exemplified by recent debates over a group of chemicals called polybrominated diphenyl ethers (PBDEs). PBDEs have been used for several years and benefit the public by reducing the risk of fire. (2) Recent studies indicate that PBDEs are appearing at increasingly high concentrations in humans and might have the potential to cause serious harm. (3) As is often the case, however, there are more questions about PBDEs than there are definitive answers. The European Union has decided to ban two forms of PBDEs and restrict the use of a third, but the United States has not taken similar action at a national level. (4) This divergence has led to much debate over who is right--the EU for acting in a precautionary manner or the United States for requiring more scientific evidence before taking formal action. (5)

Deciding what action to take in this type of situation, where so much is unknown, requires a determination of how much risk is acceptable. Every day, people evaluate risks and adjust their behavior accordingly. Some drivers meticulously follow the speed limit while others are willing to drive faster and risk getting a speeding ticket. Some investors are willing to invest in high-risk stocks that have the potential for a substantial return while others prefer the security of low-risk mutual funds. Any one of these decisions is not right or wrong per se, but rather a personal decision based on how much risk a person is willing to tolerate in consideration of the anticipated costs and benefits. Similarly, at the national regulatory level deciding how much risk is acceptable is a policy judgment, and there is no intrinsically correct answer. With respect to PBDEs, the "right" approach is the one that reflects the will of the people who will benefit from, or bear the costs of, acting now or waiting until later.

Risk taking in driving and making investments affects, almost exclusively, the person who makes that decision. In contrast, decisions made by the European Union and the United States about PBDEs have a significant effect on people outside their respective borders. PBDEs belong to a category of pollutants called persistent organic pollutants (POPs), a defining characteristic of which is the ability to travel long distances. (6) As a result, the costs of PBDEs produced or used in the EU and the United States will be borne, at least in part, by people in other countries who were not involved in the decision-making process. Many countries, following the lead of the EU, are enacting formal restrictions and bans on various forms of PBDEs. (7) This Note will argue that, given the global trend toward restrictions on PBDEs and the externalities caused by the continued use of PBDEs in the United States, the United States should respect the will of the international community and take a more precautionary approach to PBDEs. The United States will be unable to do so effectively, however, unless it amends its domestic legislation governing the regulation of toxic chemicals, the Toxic Substances Control Act, and ratifies and implements the Stockholm Convention on Persistent Organic Pollutants in its entirety. Part II of this Note discusses the history of PBDEs. Part III outlines the use of precaution as a basis for action in international agreements. Part IV compares the different approaches used by the European Union and the United States to regulate toxic chemicals. Part V analyzes the consequences of those approaches on PBDEs in light of evidence of PBDE exposure levels in the EU and United States and the possible effects of PBDEs. Finally, Part VI suggests a course of action for the United States based on principles of public choice and political accountability.

2. OVERVIEW: HISTORY OF PBDEs

   Polybrominated diphenyl ethers (PBDEs) belong to a group of chemicals known as brominated flame retardants. (8) PBDEs are used in industrial manufacturing processes because of their flame-retardant qualities, increasing the safety of the products to which they are added. (9) There are numerous different congeners, or forms, of PBDEs that differ based on the number and position of bromine atoms in each molecule. (10) The three congeners most commonly used in industrial processes are penta-BDE (hereinafter, Penta), octa-BDE (hereinafter, Octa), and deca-BDE (hereinafter, Deca), containing five, eight, or ten bromine atoms, respectively. (11) The production and use of PBDEs has increased exponentially since the 1970s, and the production of Penta nearly doubled during the 1990s. (12) By the mid-1990s it was estimated that approximately 40,000 tons of PBDEs were used globally each year. (13) Deca is used in the greatest quantity, followed by Octa, and lastly Penta. (14) As of 2001, the United States was responsible for almost fifty percent of the PBDE use worldwide, while Europe was responsible for approximately twelve percent. (15)

   PBDEs are used in a variety of materials including plastics, textiles, and polyurethane foam. (16) These materials are then incorporated into numerous consumer products that are found in the majority of U.S. homes, such as home furniture, carpeting, computers, televisions, carpets, hair dryers, copy machines, and smoke detectors. (17) The amount of PBDEs added to these products varies but can reach as much as thirty percent of the product's weight. (18)

   Of increasing concern to many is not only the quantity of PBDEs used in these products but also how the chemicals are used. Flame retardants used in commercial products can be placed in two broad categories: reactive chemicals and additive chemicals. (19) The important difference between these two categories is the stability of the chemical flame retardant in the finished product. When reactive chemicals are used as flame retardants, chemical bonds form between the flame retardant and the consumer good during the manufacturing process, and the finished product is relatively stable. (20) In contrast, when additive chemicals are used as flame retardants they are simply mixed into the product; chemical bonds are not formed between the flame retardant and the finished product. (21) Because additive flame retardants such as PBDEs are not chemically bound to the final product, they are less stable than reactive flame retardants and more likely to leach into the surrounding environment. (22)

   1. A Necessary Risk?

      It would be easy to argue that PBDEs should be eliminated completely and immediately if they did not provide a significant public benefit. PBDEs create a difficult regulatory issue because although they are potentially harmful to human health and the environment, they also benefit the public by reducing the risk of fire in the products to which they are added. (23) Reducing the number of fires that occur not only saves lives but also creates indirect benefits to human health and the environment by reducing the amount of toxic chemicals released during fires. (24) Companies that use PBDEs...