Turning the Tables on Toxics

BENZENE in the air and water, and even in Perrier; pesticides in fruit juice; aflatoxin in animal feed. Toxic chemicals are not under control, and Congress must once again respond to public concern. Before it tries to prop up the same old superstructure of regulations, however, Congress should consider a different, incentive-based approach to toxic-chemical control. California has been using it for the last two years, with remarkable results.

Many people think that federal toxics laws keep failing because of lax government enforcement and a reluctance to set costly standards. But in fact, the laws themselves have a built-in structural flaw. Unintentionally, but unmistakably, the structure that Congress has created rewards delay, conflict, and indecision, instead of rewarding clarity, consensus, and decisiveness.

The Environmental Protection Agency reports that every day 6.5 million pounds of toxic chemicals are emitted into our air. Because clear limits for specific chemicals have not yet been set, the vast majority of those daily toxic emissions are deemed to comply with law. Public confidence in the protective value of such laws is understandably low.

The failure to set chemical-by-chemical standards undermines public faith in more ways than one. Without a clear number to measure against, government and industry spokespersons have had to answer the public's demand for information by resorting to complicated lectures about rat experiments and petri dishes. At best these sound apologetic, and at worst like double talk.

The law that broke through this stalemate in California, by intentionally reversing the built-in incentives, is that state's Proposition 65. Although born in controversy as a ballot initiative and loudly opposed by industry as Draconian, unworkable, and anti-scientific, Proposition 65 in practice has succeeded where federal laws have failed.

The first 12 months under Proposition 65 produced clear, numerical, health-based standards for more than twice as many specific chemicals as EPA had managed to cover under comparable federal laws in 12 years. Regulators implementing the law also brought answers to much of the underlying technical debate, such as what inferences to draw from tests on rats, and turned those answers into clear, enforceable regulations.

Perhaps most impressive to insiders, not a single word of the new regulations and not one of the new numerical limits has been challenged in court by the industries affected. The contrast with federal experience is dramatic.

Proposition 65's secret is simple. Once a chemical is identified as a known cause of cancer or reproductive harm, the burden of proof shifts to the businesses that use or discard it. Either a company must prove that the exposures it causes are being kept within established limits (defining the boundaries of trivial risk), or else it must warn the people it is exposing to the chemical.

Placing the knowledge burden on industry, instead of on government regulators, dramatically transforms the incentives: Industry finds that as many clear numerical limits, for as many specific chemicals as possible, are in its own best interests.

Of course, the new incentive is not just to set exposure limits, but also to obey them. Manufacturers of familiar products from typewriter correction fluid to fruit juices have labored to avoid any need for warnings, by reducing or removing toxic chemicals. In other words, those who are in the best position to know how individual products, smokestacks, and outfall pipes can be cleaned up - the individual producers and operators themselves - have been given a market incentive to reduce the public's exposure to chemicals that cause cancer and birth defects.

As Congress turns its attention to food-safety laws, the Clean Air Act, and to toxic chemicals in the environment generally, it should learn from the California experiment.

Proposition 65's record shows not only that much more rapid progress can be made, but that consumers, the environment, and responsible industry can all gain from a change in structure that creates lower risks and increased public confidence.

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