Under the Toxic Substances Control Act (TSCA),
EPA issued a ruling that effectively banned asbestos.
Asbestos manufacturers (represented by Corrosion Proof)
sued, arguing that EPA's rulemaking procedure was flawed and that there
was no substantial evidence of risk from asbestos exposure.
Corrosion Proof argued that the TSCA requires that
EPA use the least burdensome regulation to achieve its goals of
minimum reasonable risk.
Banning all asbestos production and use sounds pretty
burdensome.
EPA argued that asbestos presented an unreasonable risk,
and that they chose the least burdensome regulations required to protect
adequately against the risk.
EPA had considered other options, like just labeling
asbestos products, but had rejected them in favor of a complete ban.
The Appellate Court overturned EPA's ban and ordered them
to come up with a better risk-mitigation strategy.
The Appellate Court found that, under the TSCA,
EPA is required to consider not only the negative effects of asbestos,
but also the positive effects.
In theory, lives would be saved by using the
fire-retardant asbestos material.
Since EPA only considered the negative effects of
asbestos, they did not properly calculate the risk of asbestos use vs.
the risk of banning asbestos.
In addition, the Appellate Court found that EPA did not
properly consider the risks of regulating asbestos, and how new asbestos
control technology could mitigate asbestos exposures.
EPA mentioned the problems of intermediate levels of
regulation, but did not calculate the costs and benefits of these
intermediate levels.
They only considered a very broad ban, or not really
regulating it at all.
EPA might have looked at individual uses of asbestos
and banned the dangerous uses, but do something less severe for uses
that were not likely to result in serious health effects.
The Appellate Court found that the EPA did not
quantifiably calculate the long term health benefits of banning asbestos,
but then used these 'unquantified benefits' to come to the conclusion
that asbestos should be banned.
Basically, the Court said that if you want to claim a
benefit, you have to completely quantify it.
But what if there are things that all people consider
to be benefits, but can't be captured by a dollar figure?
Like the benefits of a clean lake people can swim in,
for example.
The Appellate Court found that EPA failed to provide a
reasonable basis because their regulation resulted in a ban of products
for which there was no substitute.
EPA did not consider the increased risked posed by
banning these products, or consider the risks posed by substitutes.
Therefore, EPA's ban couldn't possibly be based on a reasonable basis.
Asbestos is a great insulator. When you ban it, you
are likely to get some fires and people will be burned.
Although the Appellate Court noted that it is not their
responsibility to determine what was reasonable, the cost-benefits that
EPA themselves used in their analysis ($30-$40 million in costs per life
saved), didn't seem to be all that reasonable.
The Court noted that more than twice as many people die
from accidentally eating toothpicks than were projected to die from the
asbestos products EPA was proposing to ban (at a cost of over $250M).
