Administrative procedure and environmental regulation

Legal History Blog recently published brief pieces by scholars visiting at Princeton's Davis Center this year, in which they wrote about their research. Some excerpts from Angela Creager's:

Why has environmental law, an area of widespread popular engagement and legal activity, met with such limited success in the last half century? Corporate money? Special interests? Neoliberalism? These usual villains are not innocent, but I am interested here in how companies and their lobbyists used provisions of law, namely the 1948 Administrative Procedures Act (APA), to thwart stronger regulation....

My focus has been the Toxic Substances Control Act (TSCA) of 1976. This was the first US law aimed at providing environmental and health oversight of all commercial chemicals. The act was introduced in 1971 as part of the Nixon administration’s environmental initiatives, and different versions of the bill passed both houses by the fall of 1972, only to die in Senate-House Conference Committee during the 92nd session of Congress. In 1974, amidst the Watergate scandal and Nixon’s resignation, the Senate and House of Representatives again passed different versions of TSCA. Once again, the legislation died in committee. Early on, it appeared that none of the bills would not become law, a simple solution for its opponents.

In July 1975, a scandal reignited political pressure for chemicals regulation. Dozens of workers at chemical factory in Virginia were poisoned through their exposure to Kepone, a neurotoxic pesticide manufactured in the plant. The Ford administration made it clear that some version of TSCA needed to be signed into law to appease political pressure. Representatives for the Manufacturing Chemists Association (MCA), a trade group representing the chemical industry, began hammering out the details of a bill with Congressional staffers. The final statute specified numerous procedural hurdles for EPA in fulfilling its mandate to regulate chemicals. These hurdles were not conceptual slipups, but compromises made to produce a bill acceptable to industry. James T. O’Reilly, an industry lawyer who actually helped write the provisions, has said: “The 1976 Toxic Substances Control Act (TSCA) contains such obscure and inconsistent phrases that its supporters were doomed to frustration.” The legal scholar Kevin Gaynor, who analyzed the law shortly after it was enacted, called it “a regulatory morass.” Even its provisions “ensuring transparency of safety data” became “rigid procedural handcuffs.” This was a statute designed to make industry oversight difficult.

Many of these complexities had to do with how TSCA addressed requirements of the APA. For example, rather than make toxicity testing of commercial chemicals required for either old or new chemicals, the bill stipulated that EPA would have to issue a rule to require testing of any individual substance. Requiring rule-making on a chemical-by-chemical basis meant that the agency could only request testing data on a limited number of commercial chemicals, of the 60,000 on the market and thousands added each year. 

(from Environmental Working Group)

CFP: Race and Resilience Otherwise (for ASEH 2020)

[I'm passing on this call for papers for a panel being organized for the next American Society for Environmental History meeting. Readers should feel free to send me any relevant announcement!]

Race and Resilience Otherwise

What does “resilience” mean for black, brown, and indigenous people living in systemic racism? This guiding question builds from the spirit of the conference theme, “Reparative Environmental History,” and celebrates the discipline’s ongoing engagements with structural racist, classist, and colonial environmental oppression. Though resilience is used to orient us to the future of our environments (i.e. gaining abilities now to respond effectively to future catastrophes), like reparations, the concept actually requires close examination of past processes, active decentering of white settler histories, and embracing narrative frameworks that work with critical race theory. In reality, folks of color have been resilient and forced into holding patterns of “resiliency” within an unequal, unjust system for generations. In this panel, we want to continue thinking resilience otherwise by articulating critical environmental histories of race.  

This panel calls for contributions that center — rather than “include” — black, brown, and indigenous environmental histories to help us unpack this problematic of resilience, and therein reconsider the content and meaning of contemporary environmental restorative justice. We welcome scholarship on, for instance, histories of environmental racism, struggles for environmental justice, food sovereignty, colonial land dispossession, histories of BIPOC* environmental community building and belonging, and ways of knowing nature outside of modern, white supremacist capitalism.

*Black and Indigenous People of Color

Please submit proposed paper title and brief abstract (250 words max), along with your name, institution, and preferred email address to Lisa Avron (lisa.avron@gmail.com) by July 3rd.