First Chemical Rule in Court Tests New TSCA Law

Public Policy & Regulation attorney Dimitri Karakitsos was interviewed for an edition of POLITICO Pro's Energy Regulation Watch newsletter covering a court case that for the first time examines a rule promulgated under 2016 amendments to the Toxic Substances Control Act (TSCA). The regulation in question is the U.S. Environmental Protection Agency's (EPA) risk management rule banning most uses of methylene chloride. Some professionals have expressed concern about the progression of the case, saying judges' questions have focused too much on the science behind the rule and that a ruling against the EPA would significantly hamper the agency's regulatory efforts under TSCA, similar to what happened following a 1991 appellate decision striking down an asbestos ban. Mr. Karakitsos, who helped draft the 2016 amendments that became the so-called "new TSCA," said he disagreed with these concerns, noting it's a "complex and blurry line" between science and policy decisions and asserting that courts should be allowed to scrutinize policies for the scientific reviews providing evidence for these types of regulations. He added that because TSCA governs chemicals with commercial applications, its standard of review differs from other environmental laws.

"I think holding EPA to a higher standard and saying that you have to prove these actions with substantial evidence is an important piece of that," he said.

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