This oral history is one in a series that looks at the history of the Toxic Substances Control Act from the perspectives of the individuals involved in its creation, implementation, and execution.
E. Donald Elliott obtained his bachelor’s degree and his law degree from Yale University, where he now teaches. He clerked for Judge Gerhard Gesell and Chief Judge David Bazelon, both of the US Court of Appeals for the District of Columbia Circuit; and served as General Counsel for the US Environmental Protection Agency. Since leaving the Agency he has been in private practice, specializing in environmental law.
Elliott begins his interview by emphasizing that confidentiality about legal matters during his tenure at the EPA. He then discusses the beginnings of Toxic Substances Control Act (TSCA) and its relation to Resource Conservation and Recovery Act. He concentrates on concepts of risk and prevention, explaining their changing interplay over the years. He describes what he wishes the EPA’s role could be and what it is, decrying especially the “disaster” of the failure of the EPA to regulate asbestos. Noting especially a case involving a judgment against Corrosion Proof Fittings. Elliott believes that the major reason for failure in this major public health initiative was the conservative interpretation of the law. He also believes that this decision detracted power from Section 6 of TSCA.
According to Elliott, instead of using Europe’s “precautionary principle,” the EPA must now show strong evidence of harm in all areas; that is, regulation must now hinge on risk assessment, not on prevention of harm. Other attempts to use Section 6 also have not succeeded. In Ethyl Corporation v. EPA, Judge James Wright established the precaution principle but was reversed by the Supreme Court, which held that hazards are a matter of fact, not policy; furthermore, this decision removed “deference” to the EPA that previously had been assumed, thus establishing “hybrid rulemaking” that made Section 6 much harder to implement.
In general, Elliott believes that the EPA is responsible for maintaining public health and should use police power to regulate in order to prevent harm from pollution. He prefers the Registration, Evaluation, Authorisation, and Restriction of Chemical substances (REACH) approach in Europe, maintaining that Americans do not trust government as much as Europeans do. He affirms Judge Harold Leventhal’s dictum that regulation should balance the risk of false negatives with the risk of false positives. Using the standard of “reasonable assurance of no harm” works for food quality but not for hazardous materials; in cases involving such materials overregulation is preferred. From his perspective, the Clean Air Act and Superfund are EPA’s finest achievements. Elliott has spent his career trying to “mesh” science and the law.
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