Erik Baptist Discusses Important Ruling for EPA in Asbestos-Related TSCA Litigation

November 18, 2019

Erik C. Baptist, a partner in Wiley Rein’s Environment & Product Regulation Practice, was quoted by Bloomberg Law in coverage of a federal judge’s ruling in asbestos litigation involving the Administrative Procedure Act (APA) and Toxic Substances Control Act (TSCA).

According to the article, Judge Edward M. Chen of the U.S. District Court of the Northern District of California ruled that six advocacy groups can move forward with their APA claim that the U.S. Environmental Protection Agency (EPA) improperly denied their request for EPA to collect additional information on asbestos.

Mr. Baptist told Bloomberg Law that the case “might also be the only time in recent memory where the government won by losing.”

The groups had filed the lawsuit in February under both the APA and TSCA. In a November 15 decision, Judge Chen denied the EPA’s request to halt the groups’ APA claim, but he also ruled that the groups’ TSCA claim – for a de novo proceeding to determine whether asbestos presents an unreasonable health risk – cannot move forward and must be dismissed.

Mr. Baptist said “the court’s decision represents a landmark victory for EPA’s TSCA program for two fundamental reasons – one immediate and the other long term.” In the near term, he noted, the judge’s ruling is a win for EPA because a de novo proceeding would have taken a lot of time. In the longer term, the decision will likely disincentivize future rulemaking petitions filed under TSCA section 21, which authorizes them, he said.

Such petitions “essentially attempt an end run around the risk evaluation process established in section 6,” which outlines the process for EPA to follow in deciding whether a chemical warrants restrictions, Mr. Baptist said.

“The court’s decision today effectively puts an end to those potentially burdensome actions,” he said. “Judge Chen deserves to be commended for his desire to seek the truth amid confusing arguments set forth by both sides.”

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