When fear and activism define federal government action, it leads to perverse consequences. President Biden’s effort to “end all fossil fuels” is perhaps the most well known. Pitched as a tool to change future weather patterns, his whole-of-the-government assault on U.S. oil and gas is what’s driving high gasoline prices, less reliable access to energy and reduced national security.
Fear-based activism is at work in another important, industrial sector: U.S. chemicals. A few politically connected activists are peddling alarmist rhetoric with the goal of pressuring the Environmental Protection Agency to regulate certain per- and polyfluoroalkyl (PFAS) substances out of existence. This effort stands to create a billion-dollar policy debacle with a host of unintended consequences, including potentially undermining momentum surrounding solutions that would meaningfully address PFAS substances without banning them.
Since the 1940s, PFAS substances have been used in a variety of important applications such as nonstick and stain-resistant coatings, as well as lifesaving fire-retardant technologies. Today, for example, PFAS are used in shampoo, makeup, dental floss and fire extinguishers. The chemical properties that make them effective and long-lasting are also the source of increasing concerns.
The EPA has been monitoring the presence of PFAS since 2012. In 2019, EPA released the first comprehensive action plan with short-term solutions and long-term strategies to address what the agency characterized as an “emerging environmental challenge.” Because these chemicals largely end up in soil or water systems, much of the regulatory activity and affiliated research focuses on protecting safe drinking water and how best to clean up contaminated land.
A rarity in modern environmental policy, there is broad, bipartisan consensus that PFAS must be responsibly addressed. Until recently, PFAS policy has been developed through constructive and transparent engagement among Democratic and Republican members of Congress, the EPA, scientific experts, and impacted businesses and communities. Starting in late 2021, however, politics and impatient activists have overtaken this previously sound and respectable process. As a result, political appointees have short-circuited scientific reviews, undercut stakeholder engagement, and, on Aug. 26, 2022, rushed out an unworkable and economically damaging rule.
This new rule attempts to designate two of the most common types of PFAS chemicals as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Such a designation triggers expensive and onerous disposal requirements and significantly increases legal liability. As a point of comparison from one state, cleanup of nondesignated waste averages $5.72 per ton, whereas the rate for hazardous waste is $310.10 per ton. Waste management entities have warned that this new rule could make waste management costs skyrocket and have a disproportionate impact on low-income households that rely on access to affordable waste services.
With all these projected costs and complications, the rule will do little in terms of actually removing these substances from the environment. For cleanup programs to be effective, agencies must have a comprehensive understanding of how to detect, manage, and dispose of targeted substances, as well as a clear understanding of how they may affect human health.
To date, the EPA admittedly does not fully understand how PFAS exposure affects humans, does not have an efficient method for detecting it, and has no clear guidance on how to manage and dispose of the chemicals. Yet the agency continues to move ahead with designating PFAS as hazardous substances and, in effect, puts the regulatory cart before the scientific horse.
This disjointed approach has been subject to significant criticism from the industry, stakeholders, and even some environmental groups. The country’s largest trade association representing chemical companies has called the proposed designation as an “expensive, ineffective and unworkable means to achieve remediation.” A leading grassroots group dedicated to fighting PFAS contamination stated that the designation could complicate cleanup. The Sierra Club also weighed in, noting that the EPA “does not have the monitoring methods or data to conclude that any of these methods [for disposal] are safe ways to contain PFAS wastes.”
The EPA should take these criticisms seriously and not publish the rule as final. Advancing sound environmental policy requires completed scientific assessments alongside carefully crafted solutions that balance risks with benefits and costs with technical realities. Rushing heavy-handed mandates to regulate politically controversial substances out of existence has dire consequences of which the EPA should avoid.