TITLE

American Chemistry Council v. Johnson: Community Right to Know, But About What?: D.C. Circuit Takes Restrictive View of EPCRA

AUTHOR(S)
Desai, Nimish R.
PUB. DATE
August 2006
SOURCE
Ecology Law Quarterly;2006, Vol. 33 Issue 3, p583
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
The Emergency Planning and Community Right-to-Know Act (EPCRA) requires that facilities disclose routine emissions of chemicals listed on the Toxics Release Inventory (TRI) by the Environmental Protection Agency (EPA). EPA may add a chemical to the TRI if the chemical meets one of three listing criteria, which all focus on the "adverse effects" the chemical causes. EPA has long maintained that it can list chemicals whose adverse effects are felt indirectly, such as by helping to form another chemical that has adverse effects. In American Chemistry Council v. Johnson, the D.C. Circuit held that EPA had no such authority. Under its holding, a chemical can only be listed if it causes harm through direct exposure. This holding, however, is of questionable validity. The court reached this result by reading a "toxicity" requirement into the listing criteria and by refusing to honor either the statutory definition or EPA'S definition of "toxicity," Moreover. the court's singular focus on exposure is too simplistic given the myriad ways manufactured chemicals adversely affect human health and the environment. Indeed, the court's holding in theory would require that EPA remove chemicals from the TRI that fit traditional notions of "toxicity," many of which Congress placed on the list when it wrote the statute.
ACCESSION #
23498056

 

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