Climate Scientists And Experts Take Legal Action Against EPA To Compel Climate Action Under Chemical Statute

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A group of scientific, medical and policy experts – including renowned climate scientist Dr. James Hansen – is suing the U.S. Environmental Protection Agency in an attempt to compel the agency to address greenhouse gas (GHG) emissions under a federal statute designed to control hazardous chemical substances.

The climate experts filed their lawsuit on November 12, 2022 in federal court in Eugene, Oregon. The case follows the EPA’s rejection of a petition submitted by the experts explaining the grounds for initiating a rulemaking under the Toxic Substances Control Act to phase out anthropogenic GHGs that are driving the rapidly escalating climate crisis. Plaintiffs demand that EPA use its authority under the TSCA to develop regulations to limit and eventually eliminate planet-warming emissions, the majority of which stem from producing and consuming fossil fuels. According to the complaint: “Without regulation under TSCA, the U.S. Government will not eliminate the unreasonable risk to health and the environment posed by greenhouse gas emissions.”

Previously the EPA has relied on the Clean Air Act to devise regulations addressing climate pollution, such as setting controls for vehicle tailpipe emissions. The Toxic Substances Control Act has not been utilized for climate purposes, although EPA did impose a general ban on chlorofluorocarbons (CFCs) in aerosols – chemicals that deplete the ozone layer and act as GHGs - in 1978. The TSCA requires EPA take action to control any chemical substance or mixture determined to present a risk of injuring or causing widespread harm to health or the environment.

Plaintiffs argue that GHGs (beyond just CFCs) qualify under the statute as dangerous substances that warrant agency action to control.

“TSCA is a chemical safety act. Right now, greenhouse gases are the most unsafe chemicals on the planet. TSCA is designed to control chemical risk other authorities can’t,” Donn Viviani, plaintiff and former EPA scientist, said in a statement. “I worked at EPA for over 30 years, and it is hard for me to understand why the Agency would need a Petition to regulate these unsafe chemicals,” he continued. “Indeed, it is virtually unbelievable to me that they denied the Petition and require a lawsuit to take action to contend seriously with the worst risk that mankind has ever faced.”

The climate experts submitted their petition to EPA on June 16, 2022. Several months later in September, EPA denied the petition, claiming the request was not specific enough given the enormous scope of the climate crisis. EPA also said the government is taking steps to address climate change. Efforts already underway and future measures, the agency argued, would be sufficient to meet the U.S.’s climate targets.

But Dan Galpern, the attorney representing the plaintiffs and executive director of the organization Climate Protection Restoration Initiative, said current climate actions and spending, such as those included in recent legislation (the Infrastructure Investment and Jobs Act and the Inflation Reduction Act), “remain hopelessly inadequate.”

“The Agency’s reasonable use of TSCA to restrict GHG pollution really would shape an enduring legacy for Biden,” said Dr. Hansen. “The future of young people is at stake, and it is well past time we got serious.”