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Environmentals Win One for Public's Right to Know About Toxic Chemicals

By William Vogeler, Esq. on May 21, 2019

Environmentalists declared victory over the Trump administration in a lawsuit over non-disclosure of toxic chemicals in homes, schools, and workplaces.

In Environmental Defense Fund v. EPA,  the plaintiff said the Environmental Protection Agency failed to enforce rules that require companies to disclose chemicals they claim are confidential. The DC Circuit Court of Appeals agreed and said companies must show they have not altered chemicals to avoid disclosure. The plaintiffs said it was a rebuke to the government and a step forward for public safety.

However, the advocates said, it was not a complete victory.

Toxic Substances Control Act

Enacted in 1976, the Toxic Substances Control Act was designed to test, regulate, and screen all chemicals produced or imported into the United States. To ensure public safety, the act requires that any chemical that reaches the marketplace be tested before commercial manufacture.

The law requires companies to disclose when products contain toxic chemicals, but some businesses have reversed-engineered chemicals to hide their toxic nature. Robert Stockman, senior attorney for the plaintiff in the case, said the DC Circuit decision was a "significant win for public disclosure."

"EPA will now have to require significantly more evidence from companies before they can conceal the identities of chemicals they make and sell," he said. "As a result, fewer such claims will be allowed and workers, consumers and the public will gain access to more information about those chemicals." Richard Denison, a lead scientist at the advocacy group, said the chemical safety law is designed to let consumers know about toxins in the environment. He said the EPA skirted its responsibility and thwarted the public's right to know.

Deference to the EPA

Unfortunately, the EDF said, the appeals court gave deference to the EPA in interpreting the law. Among other areas, the appeals panel ruled the agency could allow any manufacturer or processor to make a claim for confidentiality. The claim can be made, regardless of whether the company has previously made such a claim.

The DC Circuit also deferred to the EPA in its decisions to delay assigning "unique identifiers" to certain chemicals, the plaintiff's attorney said, and in deciding to exempt chemicals made only for export from the law's inventory notification requirement.

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