D.C. Circuit Affirms Public’s Right to Know about Chemicals in Use under Reformed Law

(April 26, 2019 – Washington, D.C.) Today, the U.S. Court of Appeals for the D.C. Circuit delivered a strong rebuke to the Trump Environmental Protection Agency’s (EPA) implementation of the nation’s chemical safety law, protecting key aspects of the public’s right to know about the toxic chemicals in our homes, schools, and workplaces.  

The Court agreed with EDF that EPA had failed to require companies to show that the identities of their chemicals cannot be reverse-engineered in order to claim them confidential under the Toxic Substances Control Act (TSCA). The Court remanded the rule back to EPA to require that companies make this showing to claim confidentiality. The Court also affirmed that other key TSCA requirements apply to confidentiality claims despite EPA’s failure to include them in its regulations.

“This decision is a significant win for public disclosure and a strong affirmation by the Court of the public’s right to know about the chemicals to which we all are or may be exposed. The Court ruled that EPA must require companies to provide real substantiation for their claims for confidentiality – and that EPA had failed to do so in the rule we challenged,” said Robert Stockman, Senior Attorney at Environmental Defense Fund. “EPA will now have to require significantly more evidence from companies before they can conceal the identities of chemicals they make and sell.  As a result, fewer such claims will be allowed and workers, consumers and the public will gain access to more information about those chemicals.”

In the case, EDF v. EPA (D.C. Cir. 17-1201), EDF aimed to ensure that EPA upholds the requirements set forth in the reformed Toxic Substances Control Act (TSCA) to maximize transparency and public knowledge about which chemicals are currently in use by narrowing the grounds for asserting confidentiality claims and requiring more scrutiny of them. The Court affirmed that these requirements apply despite EPA’s failure to incorporate them into its regulation.

“A key goal of the reformed chemical safety law is to make more information public about the chemicals we’re exposed to at home, in our workplaces and schools, and through our environment.” said Dr. Richard Denison, Lead Senior Scientist at Environmental Defense Fund. “While the Trump EPA has taken every opportunity to skirt its responsibility and conceal information that the public has a right to know, the Court’s decision today affirms that the law trumps those efforts.” 

On some issues, the Court gave deference to EPA in interpreting the law as it did:  EPA’s decision to delay assigning “unique identifiers” to certain chemicals with confidential chemical identities; and its decision to exempt chemicals made only for export from the law’s Inventory notification requirement. Finally, the Court unfortunately ruled that EPA could in its discretion allow any manufacturer or processor to make a claim for the confidentiality of a chemical, regardless of whether that company had previously made such a claim. While EDF does not agree with the Court’s characterization of our position, the Court cited the Chevron standard that provides agencies with considerable deference.

For more background on the decision; see the bullets below. For more information on this and other lawsuits challenging EPA’s implementation of TSCA, see: https://www.edf.org/health/tsca-case-resources. 

Additional background on today’s decision:

• The Court ruled that EPA acted arbitrarily and capriciously when it failed to require companies to “substantiate” that a chemical identity they wish to keep confidential is not “readily discoverable through reverse engineering.”  “[EPA’s] omission of any inquiry into a chemical identity’s susceptibility to reverse engineering effectively excised a statutorily required criterion from the substantiation process.”  Based on this ruling, the Court remanded the Rule back to EPA to revise its substantiation process and require companies’ substantiations to address reverse engineering when claiming confidentiality for their chemicals.  As a result, fewer such claims will be allowed and workers, consumers, and the public will gain access to more information about those chemicals.
• While EDF did not win on our claim that EPA erred by failing to incorporate certain statutory requirements for confidentiality claims into its regulation, the Court ruled that those requirements are nevertheless binding on EPA regardless of the regulation and affirmed that EPA must comply with those requirements going forward. “Should the EPA’s future implementation of these provisions of the Inventory Rule fall short of statutory mandates, a challenge can be raised then.”  Our goal was to ensure that EPA would be bound by those requirements despite the regulation, and the Opinion ensures that is the case.
• With respect to unique identifiers, the Court ruled that EPA has discretion to address those requirements separately through another process.  EDF participated in that process and succeeded in convincing EPA to adopt a significantly better system than it originally proposed.  EDF continues to urge EPA to develop and timely implement the unique identifier system, which to date has fallen well short of the mark:  Despite EPA’s allowance for hundreds of chemical identities to be kept confidential, to date it has assigned only 157 unique identifiers.  
• Unfortunately, the Court ruled that EPA has discretion to allow any manufacturer or processor to make a claim for confidentiality regardless of whether that company had previously made such a claim.  EDF does not agree with the Court’s characterization of our position as only allowing the original claimant to make a claim.  Our view was that any manufacturer or processor who had previously made a claim could maintain an existing claim through this process; our objection is that persons making new claims through this process are not maintaining an existing claim within the meaning of the statute.  Nonetheless, the Court reached a different conclusion under the Chevron standard that provides agencies with considerable deference.
• Similarly, the Court ruled that EPA has discretion to exempt export-only chemicals from reporting under Section 8 despite the fact that Section 8 applies to export-only chemicals.  The Court agreed with EDF that Section 8 does apply to export-only chemicals, but found that EPA could nonetheless exempt them from Inventory notification.  The consequence of the Court’s decision is that the public will not know that chemicals produced solely for export in the United States are being produced.