Over fifty different chemicals may have endocrine disrupting effects, and these chemicals permeate our environment. We may be exposed to them through the products we use, the food we eat, the water we drink, and the air we breath. Although there is a clear need for further research into EDCs, the legal and regulatory communities should begin to consider the types of responses that may be appropriate if the scientific evidence grows stronger.
This article describes and assesses potential legal responses to EDCs, focusing on regulation and litigation, and concludes that existing legal tools will probably be inadequate to respond to EDC risks. The main obstacle to legal action is scientific uncertainty, which has frequently posed challenges for our legal system in contexts such as environmental regulation and toxic tort litigation. Scientific uncertainty is likely to plague the risk assessment process for EDCs, delaying potentially effective regulations even though existing statutes provide sufficient authority to regulate EDCs. In the litigation context, scientific uncertainty will make it difficult to connect a given EDC to a given harm. The usual problems with bringing a toxic tort suit, such as long latency periods, proof of causation, and identification of defendants, would be magnified many-fold. Although scientific understanding of EDCs is likely to increase over the next few years, remaining uncertainties can probably be used as a shield to block regulatory efforts and claims by tort litigants. In short, we may be facing a significant new toxic risk with few legal tools available to protect public health.
This article acknowledges the preliminary nature of scientific investigation of EDCs. It undertakes an examination of potential legal responses not to urge immediate legal action, but to explore options so that the scientific and legal communities can begin to share ideas as research progresses. Because EDCs have unusual toxicological characteristics, current risk assessment techniques and regulatory tools may be inadequate. Fundamentally new approaches may need to be developed if the United States is to respond effectively to EDC risks. In the near term, a consideration of the strengths and weaknesses of existing legal and regulatory options can help to identify more effective approaches to EDCs.
Part II of this article provides an overview of EDCs and the current state of scientific knowledge regarding their health effects. The main categories and uses of EDCs are outlined in Part III. Part IV explores the adequacy of current toxic chemical statutes and regulations for addressing EDC risks, and Part V examines the prospects for litigation over EDCs. Finally, Part VI briefly outlines some promising new approaches to EDCs that could be warranted if the scientific case against EDCs continues to strengthen.
Noah Sachs, Blocked Pathways: Potential Legal Responses to Endocrine Disrupting Chemicals, 24 Colum. J. OF Envtl. L. 289 (1999)