Jumping the Pond: Transnational Law and the Future of Chemical Regulation

Abstract

Just as domestic pollution can cause transnational externalities, domestic environmental regulation can create transnational ripple effects in other jurisdictions. In this Article, I show how chemical regulation—long a weak link in the network of U.S. environmental laws—is about to be reshaped and reformed through the extraterritorial ripple effects of new European Union legislation. Contributing to both international law and environmental law scholarship, this Article shows how transnational information flows can be harnessed to end the longstanding drought of data on chemical toxicity in the United States.

Part I of this Article critiques the U.S. chemical regulatory regime, arguing that a lack of toxicity testing and high statutory barriers to regulation have created a persistent data gap that has undermined public health and environmental protections. I then argue that the EU legislation offers a superior model for addressing chemical risks. The EU law makes toxicity testing a default requirement for thousands of chemicals produced or imported in Europe, encourages substitution away from hazardous chemicals, and shifts the burden of proof on the safety of the most hazardous classes of chemicals from government to industry. As a result of these innovations, this next-generation chemical regulatory regime rewards knowledge, rather than ignorance.

In Part II of this Article, I shift to an analysis of transnational interactions in chemical regulation. I demonstrate that “regulatory turbulence” from the EU legislation—extraterritorial political, legal, and commercial effects—is already changing the political and informational terrain for chemical regulation in the United States. Information on chemical risks, disclosed in Europe, will close longstanding data gaps in the United States and will help build support for reform of U.S. law. Even if the United States does not enact major legislative reforms, its chemical marketplace will increasingly be governed by European norms. Chemical regulation is therefore a case study in how transnational law and global information networks are shaping the future of American environmental law.

Keywords: chemicals, toxic, regulation, transnational law, environmental law, European Union