TRACY DAUB, Southern California Interdisciplinary Law Journal
Scientists are unsure how the toxic components of BFRs sprayed onto consumer products enter into the environment and into animal and human systems. What is certain, however, is that these chemicals are building up in humans, especially in breast milk, at a rate that concerns toxicologists. In response to increasing concerns about the safety of these compounds, many countries have begun to regulate or ban them. The Environmental Protection Agency (EPA) usually administers such action in the United States; however, in the wake of its inaction, the California Legislature has taken the reins and banned two types of BFRs. The California legislation phases out the use of certain BFRs by 2008, making California the American front-runner for such a ban.
it is interesting to note that the federal government has been relatively passive with regulating or banning BFRs nationally, but has vocally supported the California ban.16 This unexpected move to defer a national problem to the purview of a state deserves some attention; particularly in light of the spillover effects POPs, such as BFRs, have on other jurisdictions, including international concerns. Federal deference to local regulators may take place for a number of reasons that will be explored, including a public choice model of legislative intervention,17 Jonathan Macey’s “franchise theory of federalism,”18 and states’ autonomy in environmental concerns regarding their citizens. In spearheading the U.S. ban of certain BFRs, the California legislation may have set a precedent for states to act unilaterally when the EPA is slow to move on perceived threats.
This precedent involves not only a state taking the lead in national matters; it also circumvents the EPA’s method of risk assessment. The current model of risk assessment allows for products to be put on the market with minimal environmental and human health studies. Only when extensive peer-reviewed scientific studies prove a product is hazardous to humans or the environment may the EPA step in and ban it. Conversely, the European Union and other nations follow a more precautionary regime that allows the banning of a substance if it is thought to be harmful in any way, with minimal scientific proof of actual toxicity or harm. Because the California legislation passed with no independent, validated, peer-reviewed scientific findings, and no impediment by the EPA or Congress, it may be an indication that the United States is beginning to lean towards a more precautionary model of risk management that more closely resembles that of its European counterparts.
Finally, I will conclude that while the California legislation accomplishes the important safety measure of a national ban on certain BFRs, the federal government should have taken the necessary steps to ensure such an action. The norm of state autonomy with respect to environmental matters is appropriate in most environmental decisions; however, within the narrow scope of persistent, endocrine-disrupting compounds, there is a need for national uniformity, accountability and authority to act internationally.