Broadway Producer and Environmental Activist

Earthjustice’s Court Victory Strengthens EPA Safeguards Against Toxins

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Since the 1970s, the nonprofit environmental group Earthjustice has supplied lawyers to argue—and win—a number of significant lawsuits in an effort to protect the earth and its ecosystems for the benefit of humans and wildlife that inhabit them.

Earthjustice has tackled a wide range of issues, which include conserving threatened and endangered species, preserving the quality of public land, and putting a stop to the pollution of air and water.

On its website, the organization notes that it exists because “the earth needs a good lawyer.” Earthjustice’s recent spate of court victories demonstrate that it provides exactly that through its dozens of affiliated attorneys.

In November 2019, Earthjustice announced a victory in the federal 9th Circuit Court of Appeals in San Francisco that will help to strengthen safeguards supporting human and environmental health.

EPA must follow through on safeguarding against toxins

The case, Safer Chemicals Healthy Families, et al. v. U.S. EPA, was resolved with a court ruling that will govern major aspects of how the U.S. Environmental Protection Agency is required to weigh the health risks associated with numerous common chemicals.

Earthjustice’s attorneys filed the case on behalf of a group of environmental and research organizations that include the Union of Concerned Scientists and the Sierra Club.

The ruling refers back to the federal Toxic Substances Control Act, or TSCA, which was enacted in 1976. TSCA provides the EPA with the scope to conduct a detailed examination of the dangers to the environment and human health associated with certain chemicals, as assessed by researchers.

Addressing long-term neglect

The goal of the 1976 act was to provide a mechanism—through increased regulation—by which the EPA could protect the public from foreseeable risks. In practice, however, the EPA has never followed through with a comprehensive investigation of most of the chemicals cited in the act. As a result, numerous potentially hazardous—even deadly—chemicals are inadequately regulated.

While President Barack Obama signed a critically needed update of the TSCA in 2016, the Trump administration has not addressed its obligations to fulfill the act’s provisions.

In fact, the current administration has dealt with the Frank R. Lautenberg Act—the Obama administration’s designation for the 2016 update—in such a way as to negate much of the progress that has been made and to further forestall the EPA’s ability to carry out its duty to investigate and report possible violations of environmental regulations and laws.

A wide swath of everyday dangers

Specific substances that fall under the provisions of TSCA include lead-based paint; asbestos; and PCBs, or polychlorinated biphenyls. Its scope covers a wide range of products, including clothing and household items, which consumers use every day.

Due to the recent Circuit Court ruling, which resulted from Earthjustice’s legal advocacy, the EPA must implement major changes into its methods of evaluating the health risks posed by a variety of chemicals found in common materials such as flame retardants, insulation, piping for plumbing systems, and more. And it must do so by considering the many pathways to chemical exposure that people face everyday.

A realistic assessment

In the first place, the 9th Circuit decided that the EPA must focus its risk evaluations on the circumstances that expose people to chemicals that are currently being used and disposed of. The court said this provision must hold true, even if some of the individual products that contained the harmful chemicals are no longer on the market.

The significance of this part of the ruling should not be overlooked. Firefighters injured by exposure to asbestos and children harmed through drinking water sourced from lead piping still deserve justice and support, although neither lead pipes nor asbestos are used in today’s construction of new buildings.

A clear directive

The second major provision in the Circuit Court’s ruling states that the EPA is forbidden by its own rules from using its discretion in ways that fail to take exposure pathways into account when evaluating risk. Thus, the agency is not permitted to select which of a questionable chemical’s uses that it will examine and which it will disregard.

Far-reaching benefits

Even as the Safer Chemicals Healthy Families case proceeded through the court system, the EPA was simultaneously evaluating the risk factors present in asbestos and nine other chemicals. According to the initial documents on these evaluations, the agency has neglected to address the risks that certain chemicals pose to both employees in the workplace and children.

As a result of this court ruling, the EPA cannot continue to ignore its responsibility to address these types of chemical uses. Instead, it must formulate every risk evaluation that its staff prepares according to this more comprehensive and common-sense approach.

As the attorneys for Earthjustice framed the importance of the ruling, the Trump administration no longer has the leeway to favor the chemical industry by conducting incomplete risk assessments. Instead, it must base those assessments on the experiences of people who have to live or work with exposure to them, regardless of how that exposure occurs. The administration must then take action to safeguard the public from these chemicals in the future.

A native of Berkeley California, Louise Gund has built an accomplished career as a photographer, environmental activist, and Broadway Producer. Since 2014, Ms. Gund has produced six Broadway plays and musicals, including All the Way, Sweat, Head Over Heels, Sylvia, Fiddler on the Roof, and Six Degrees of Separation.  The shows she has produced have been nominated for four Tony Awards, three Drama Desk Awards, four Drama League Awards, and four Outer Critics Circle Awards. Ms. Gund has a strong passion for environmental activism and has collaborated with a number of other organizations to fight for the environment. You can connect with Louise Gund at LinkedIn. Read her full bio here.