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March 01, 2018

Literary Resources

Reviewed by JoAnne L. Dunec


New TCSA: A Guide to the Lautenberg Chemical Safety Act and Its Implementation

Lynn L. Bergeson and Charles M. Auer, eds.
ABA Section of Environment, Energy, and Resources, 2017

In 2016, Congress substantially revised the Toxic Substances Control Act (TSCA), which, per the Executive Summary, “marked the end of a decades-long quest to remedy that which ailed our domestic industrial chemical management law, and the beginning of a new era of TSCA law and regulation.” As implied by the title and described in the summary, “[t]his book identifies and explains the substantial revisions to TSCA occasioned by enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act on June 22, 2016, to produce ‘new TSCA’ (Pub. L. No. 114-182), amending and replacing ‘old TSCA,’ Pub. L. No. 94-469, as of the date. . . . New TSCA fundamentally changes EPA’s approach to domestic chemical management. The key changes relative to the approach of old TSCA are summarized below” in the Executive Summary.

According to the summary,

Section 2 of the new TSCA is largely unchanged. It remains “the policy of the United States” that adequate information should be developed by chemical manufacturers on the health and the environmental effects of chemicals, adequate authority should exist to regulate chemicals that present an unreasonable risk of injury to health or the environment, and EPA must exercise that authority so as “not to impeded unduly or create unnecessary economic barriers to technological innovation.”

Section 3 (Definitions) added new definitions, as well as modifications to existing definitions. Among them is the “inclusion of ‘workers’ as a specified subpopulation [which] may raise the issues of occupational risk concerns as subject to closer scrutiny under new TSCA.”

The summary continues:

Section 4 expands EPA’s general authority to require the development, by manufacturers, importers, and processors, of needed test information on the health and environmental effects, environmental fate, and exposure potential of TSCA chemicals. . . .

Section 5 generally requires that companies must notify EPA prior to manufacturing or processing “new chemicals” or Significant New Uses (NC/SNU) [as defined]. . . .

TCSA Section 6 generally authorizes EPA to restrict or ban the manufacture, processing, or distribution in commerce of chemical substances or mixtures upon a showing that the activity involved “presents an unreasonable risk or injury to health or the environment.” . . .

TSCA Section 8 imposes reporting and recordkeeping requirements on manufacturers, importers, processors, and distributors of chemical substances and mixtures. . . .

TSCA Section 9(a), the “hand-off provision,” addresses the relationship of TSCA to other federal laws and outlines the procedures whereby issues concerning TSCA chemicals can be referred to other federal agencies or other parts of EPA. New TSCA amends this section by requiring that the receiving agency acts or responds within the time period specified by EPA in the referral. . . .

Section 12 of New TSCA prohibits the export of certain mercury compounds as of January 1, 2020, other than to member countries of the Organization for Economic Cooperation and Development (OECD) for environmental sound disposal. . . .

New TSCA revises and completely replaces TSCA Section 14 in its treatment of confidential business information (CBI). These amendments reflect a carefully negotiated balance between the clear need for nondisclosure of truly meritorious CBI and the right of others to have access to such information under certain circumstances. . . .

New TSCA increases civil and criminal penalties, respectively, from $25,000 to $37,500, and from $25,000 to $50,000, and, as in old TSCA, applies these penalties as per day violations. . . .

Section 18–Preemption was one of the most controversial and debated provisions of the new law. Industry longed for a wholesale federal preemption of a growing number of state chemical control measures that threatened to disrupt commerce business transactions. What resulted from intense negotiations . . . was a compromise that leaves in place existing state laws enacted before August 31, 2003, and other state measures taken before Earth Day on April 22, 2016. . . .

New TSCA amends Section 19(a) by providing, among other changes, that Section 6(i)(1) orders that make low-priority determinations are subject to legal challenge within 60 days of the designation. The law also makes orders under Sections 4, 5(e), and 5(f) subject to legal challenge. . . . Importantly, Section 19(c) retains the “substantial evidence” standard of review rather than the more widely employed “arbitrary and capricious standard” for administrative rules that had been proposed in prior versions of TSCA reform.

Section 21—Citizens’ Petitions . . . New TSCA essentially retains Section 21 with conforming changes.

New TSCA significantly revises and expands Section 26 relative to old TSCA in a variety of respects. These include important new authority expanding EPA’s collection of fees at much higher levels than old TSCA (up to a maximum total of $25 million); establishing a dedicated fund to hold the fees that are then to be used (subject to appropriation at a minimum baseline level) only to defray the costs of certain program activities. This new revenue stream is expected to support the new and expanded program activities required by new TSCA. . . .

The balance of the book, written by 11 authors (including the editors), illuminates and analyzes new TSCA in greater detail. The final chapter provides the legislative history of new TSCA, and appendices include an acronym list, frequently asked questions, and a glossary.



Climate Change


Eric Biber, Law in the Anthropocene Epoch, 106 Geo. L.J. 1 (2017) explores the Anthropocene’s effect on our legal system in the United States. Author Eric Biber takes the position that “the scope of the changes wrought by the Anthropocene will go far beyond environmental law, and implicate our entire legal system.”

But first, what is meant by the “Anthropocene Epoch”? In 2014, the Oxford English Dictionary (OED) adopted the term “Anthropocene” as a new word. According to its new words notes June 2014, it was adopted “to refer to the era of geological time during which human activity is considered to be the dominant influence on the environment, climate, and ecology of the earth.” The notes continue:

The Holocene epoch covers roughly the past 10,000 years starting after the retreat of the ice in the last glaciation of the Pleistocene. That period corresponds with the major developments of human society and technology from the Neolithic to the modern era, but the term Anthropocene (from anthropo- “human,” as in anthropology) is typically used to refer to a much shorter period in which human activity has become a major ecological force, beginning with the industrial revolution.

“Whereas humans were once a minor part of how those biological and physical systems functioned, they are now the dominant contributors—and for many of the systems where humans do not dominate, human impacts are rapidly increasing such that humans will likely dominate in the future,” Biber notes. He continues:

The example of these changes that has attracted the most legal, political, and public attention is climate change . . . [b]ut the human-caused changes that have led to the proposed identification of the Anthropocene extend far beyond climate change. For example, human activities have caused fundamental changes in global oceans through acidification and the introduction of pollutants; humans now dominate the global nitrogen cycle (the pathway by which the essential element, nitrogen, moves between various biological and physical sources); human-produced air pollutants such as particulates and ozone now cross halfway around the world; and, in the near future, human activities may initiate a mass extinction of biodiversity comparable to that which eliminated the dinosaurs.

Thus, human-caused impairments of global systems will cause tremendous impacts on society. . . . Law will not be exempt from these changes.

“This Article,” Biber writes, “argues that the challenges of the Anthropocene will shape legal fields as diverse as constitutional law, criminal law, tort law, property, administrative law, and international law—a point not yet articulated or developed in legal literature.” In Part I of the Article, Biber further examines “the main characteristics of the Anthropocene Epoch that will be relevant for the legal system: increasing human impairment and dominance of global systems, the consequences of those changes in terms of impacts on society, the increasing importance of the aggregation of individual activities across the globe, [and] the increasing rate at which human systems impair global systems [and such] new human-caused impairments of global systems occur.”

In his Introduction, Biber summarizes each part of the article as follows:

In Part II, [Biber identifies] the ways in which society might respond to human impairment of global systems and the concomitant impacts on ecosystems and society, and establish that increased government action will be a core component of those responses. Again, although each of the individual approaches has been discussed in the legal literature, this Article provides an overarching synthesis to articulate the central role that the public sphere will play in the Anthropocene.

In Part III, [Biber describes] how increased government action in response to the challenges of the Anthropocene will exert pressure on a wide range of legal doctrines in American private and public law, specifically tort law, property law, constitutional law, administrative law, statutory interpretation, and criminal law.

Finally, in Part IV, [Biber discusses] how the legal changes in the Anthropocene will echo the legal changes in American law that responded to other fundamental social and economic revolutions. In particular, the social and economic interdependence created by industrialization and the rise of a national economy provoked significant changes in American law throughout the late nineteenth and early- to mid-twentieth centuries. These similarities further support the idea that the legal changes in the Anthropocene will be significant and have substantial political implications. Moreover, this history also shows it is likely that the Anthropocene will drive legal changes because equally significant changes have occurred in the past. In addition, [Biber articulates] how the legal changes of the Anthropocene will sharply conflict with important normative political commitments in American politics and cut across existing ideological positions.

In the Conclusion, Biber predicts, “If history is any predictor, then just like the substantial legal upheaval that was initiated by industrialization or the development of a national economy, the Anthropocene will bring deep and structural changes to American law in a wide range of areas, beyond those covered in this Article.” However, Biber notes, “it is important to keep in mind that our response to the Anthropocene as a society will ultimately be a political one. . . . Whatever political choice we make, the legal landscape will never be the same.”


Reviewed by JoAnne L. Dunec

Ms. Dunec is vice president, underwriting counsel with Old Republic Title Company in San Francisco and a member of the Natural Resources & Environment editorial board. She may be reached at [email protected].