Is Cleantech Innovation “Essential” Under TSCA? It Should Be.
Last week, members in the House and Senate released Bills to amend the Toxic Substances Control Act (TSCA), the three decade-old statute that codifies much of federal chemical control policy. TSCA authorizes the Environmental Protection Agency (EPA) to regulate the manufacture and import of the 80,000 + industrial chemicals used in every industry and economic sector, including the evolving cleantech industry.
Given the ubiquity of chemicals in contemporary society, federal chemical control policy is inexorably linked to public health, the environment, and the economy. Stakeholders tend to agree that, as implemented by EPA and interpreted by Courts, TSCA has had only modest regulatory impact. While TSCA authorizes EPA to demand data or impose specific risk management measures with respect to both new and existing chemical substances, critics argue that EPA has used its authority infrequently, citing a range of policy and legal problems arising under the current law.
The House and Senate Bills would change that. Most notably, both draft bills would prohibit the import or use of most “new” chemical substances and “new uses” of existing chemical substances until EPA reviews health and safety data and makes an affirmative finding that the new substance or use meets federal safety standards. See Senate Bill at 33-37; House Bill at 25-32. In effect, the Bills would regulate every new chemical as if it is a high-hazard, high-exposure food-use pesticide, complete with similar testing and premarket approval requirements. While this approach addresses criticisms that TSCA fails to provide the regulatory authority EPA need to act on risky substances, requiring every new chemical to undergo this level of review would have not only serious resource implications for the Agency, but also impose costly delays on the industries that develop and benefit from chemical innovation.
The cleantech industry is a good example. Despite notable advances and improvements in the efficiency and price of renewable energy technologies, the industry will still need a new generation of chemical, material, and nanosubstance breakthroughs to make generation, storage, and delivery of renewable energy competitive with well-entrenched and well-capitalized fossil-fuel counterparts. While some of these new breakthroughs will come from publicly-traded energy and petrochemical companies equipped with massive R&D budgets and 10-year investment horizons, others will originate in small private or academic laboratories relying on modest endowments, grants, or venture capital.
The chemical breakthroughs in the cleantech industry will not be substances designed to kill pests and they will not be used in or on every-day foods, homes, and consumer products. These chemicals will be high-performance industrial applications: more-efficient cathodic materials for vehicles and grid-scale batteries, ultra-light composites for wind turbines, and more efficient thermal fluids for solar thermal facilities. Regulations that impose one-size-fits-all data requirements and premarket approvals for every new technology would hobble the nation’s ability to compete in, and transition to, a renewable energy economy.
Fortunately, both Bills provide mechanisms to avoid such dire outcomes. The Bills allow EPA, after public notice and comment, to exempt a substance from the premarket approval requirement where:
- the exemption is in the paramount interest of national security;
- the lack of availability of the chemical substance would cause significant disruption in the national economy; or
- the use for which the exemption is sought is a critical or essential use.
See Senate Bill at 77-80; House Bill at 42-44.
The innovative chemical technologies that promote and advance renewable energy and other cleantech applications should fall squarely within the scope of this exemption. Still, the language is vague, and federal agencies, not to mention congressional committees, are fickle. Cleantech stakeholders should follow developments in the TSCA reform effort closely to ensure that any final legislation facilitates, rather than impedes, the next generation of cleantech-related chemical innovations. These innovations are not just “critical” and “essential,” they are “in the paramount interest of” our energy and national security.