Jumping the Pond: Transnational Law and the Future of Chemical Regulation

Just as domestic pollution can cause transnational externalities, domestic environmental regulation can create transnational ripple effects in other jurisdictions. In this Article, I show how chemical regulation - long a weak link in the network of U.S. environmental laws - is about to be reshaped and reformed through the extraterritorial ripple effects of new European Union legislation. Contributing to both international law and environmental law scholarship, this Article shows how transnational information flows can be harnessed to end the longstanding drought of data on chemical toxicity in the United States. Part I of this Article critiques the U.S. chemical regulatory regime, arguing that a lack of toxicity testing and high statutory barriers to regulation have created a persistent data gap that has undermined public health and environmental protections. I then argue that the EU legislation offers a superior model for addressing chemical risks. The EU law makes toxicity testing a default requirement for thousands of chemicals produced or imported in Europe, encourages substitution away from hazardous chemicals, and shifts the burden of proof on the safety of the most hazardous classes of chemicals from government to industry. As a result of these innovations, this next-generation chemical regulatory regime rewards knowledge, rather than ignorance. In Part II of this Article, I shift to an analysis of transnational interactions in chemical regulation. I demonstrate that "regulatory turbulence" from the EU legislation - extraterritorial political, legal, and commercial effects - is already changing the political and informational terrain for chemical regulation in the United States. Information on chemical risks, disclosed in Europe, will close longstanding data gaps in the United States and will help build support for reform of U.S. law. Even if the United States does not enact major legislative reforms, its chemical marketplace will increasingly be governed by European norms. Chemical regulation is therefore a case study in how transnational law and global information networks are shaping the future of American environmental law. INTRODUCTION Chemical regulation is the lapdog of American environmental law. The primary chemical regulatory statute, the Toxic Substances Control Act of 1976 ("TSCA"),1 lacks the sharp regulatory bite of most U.S. environmental laws. Virtually every expert panel that has examined the U.S. system of chemical regulation has concluded that it inadequately protects public health and the environment.2 Yet despite a chorus of criticism3 and growing concern over the health effects of chemical exposure, TSCA has been remarkably resistant to reform. It is among the weakest, and the least amended, of all of the federal environmental statutes.4 Chemical regulation in the United States is now being transformed, however, through the transnational effects of foreign legislation. In 2006, the European Union ("EU") enacted ambitious legislation called Registration, Evaluation, and Authorization of Chemicals ("REACH").5 REACH is the pit bull of global chemical regulation. It accomplishes, in Europe, reforms in chemical regulation that have long been advocated by American environmental law scholars.6 REACH is the first major chemical regulatory regime in the world to shift the burden of proof on chemical safety from government to manufacturers, and it requires safety testing for thousands of chemicals on which there is limited or non-existent toxicity data in the United States.7 This vast new information from Europe will enrich the data-poor environment in which the United States has attempted to regulate chemicals since the mid-1970s. Europe's internal environmental law is going global, and the implementation of REACH in Europe now significantly increases the likelihood that chemical regulation in the United States will be reformed. The extraterritorial impact of REACH is just one example of a larger trend in which the EU is increasingly setting de facto global standards through its internal environmental legislation. …