Should the EPA Regulate Under TSCA and FIFRA to Protect Foreign Environments from Chemicals Used in the United States

The blood, fatty tissue, breath, and urine of nearly every human being on the planet are contaminated with a wide range of synthetic chemicals invented in the last century. Surprisingly, this contamination is not limited to industrial or agricultural regions. To be sure, people with the highest body burdens often work in, or live near, chemical factories or farms. But scientists who tried to find a less-exposed control group, and looked to isolated Inuit populations of the Canadian Arctic, were shocked to learn that these remote Northerners have among the highest chemical exposure levels of any group on Earth. The story is similar with other long-lived, dangerous chemicals, known collectively as Persistent Bioaccumulative Toxic substances (PBTs).This Note explores the regulatory ramifications of the effects caused abroad by PBTs made, used, and perhaps disposed of within the United States. Should, can, and/or must the Environmental Protection Agency (EPA) take these effects into account when making domestic regulatory decisions?This Note draws several conclusions in answer to the fundamental questions posed. First, the United States has an international obligation, under venerable prohibitions against transboundary harm and their recent codification in the Stockholm Convention, to prevent contamination of foreign countries by PBTs. Second, this international obligation includes regulating production and use of chemicals (new and old) to prevent PBTs from being introduced into the environment. Third, the EPA has the authority under TSCA and FIFRA to regulate to prevent or minimize that contamination; this authority might have existed even before the recent international agreements and almost certainly exists now. However, despite the United States's international obligation to consider foreign effects in its chemical regulatory programs, and the EPA's statutory authority to fulfill that obligation, the EPA does not have a domestically enforceable obligation to consider those effects. Put simply, without further legislation, the United States's international obligation cannot be enforced against the EPA in a U.S. court. Nevertheless, this Note argues that it makes good policy sense for the EPA to consider, to a limited extent, extraterritorial environmental risks when making TSCA and FIFRA decisions.These questions are a particular instance of a more general concern. When American productive activity generates adverse health or environmental consequences abroad, and a federal agency has jurisdiction over the domestic consequences of the activity, should the agency cast its regulatory net more broadly to incorporate these externalities? Should it voluntarily consider extraterritorial costs in formulating regulatory standards? This Note concludes that, for PBTs, the EPA has the authority (but not the duty) to do so. Thus, the arguments here are ultimately addressed not to a court, but to the EPA itself.

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