September 25, 2024

By Walker Livingston, energy & industrials analyst

Trump Efforts to Roll Back Risk Rules for Chemicals Would Face Obstacles; Harris Would Increase Focus on Environmental Justice 

• Capstone believes that former President Trump would try to reduce restrictions on risk management actions under the Toxic Substances Control Act and also to roll back some regulations imposed by President Biden. An administration led by Vice President Harris would continue to implement Biden’s chemical risk assessment and management regulations while focusing more on environmental justice and emerging contaminants.
• In a potential Trump administration, chemical companies such as Dupont de Nemours Inc. (DD) and Chemours Co. (CC) would likely benefit from regulatory tailwinds, based on both the policies Trump pursued in his first administration as well as plans detailed in Project 2025. Trump’s efforts to roll back some of Biden’s regulations could be stymied by early release dates from the Biden administration.
• Under a Harris administration, the Environmental Protection Agency (EPA) would likely continue to closely scrutinize emerging contaminants and continue to highlight environmental justice in its regulatory decisions. Chemical makers would likely face regulatory headwinds similar to those of the Biden administration. These headwinds may be exacerbated as Harris would want to build on the previous four years of regulation.
• Despite the differences between Harris and Trump, both would head administrations that would almost certainly emphasize making available the chemicals that fuel national defense and critical technologies, such as semiconductors. Both would aim to speed the regulatory process for new chemicals used in these technologies.

Chemical Regulations under a Harris Administration

Risk Assessment and Management

The Biden administration implemented a variety of wide-ranging changes to the Toxic Substances Control Act (TSCA), which a Harris administration would maintain. One of the major changes was to how the Environmental Protection Agency (EPA) evaluates the risk of existing chemicals under TSCA. The rule, itself a reworking of a 2017 chemical risk evaluation rule, mostly codified agency policy announcements from mid-2021, which expanded the exposure pathways reviewed in risk assessments and also eschewed the assumption that workers would correctly use personal protective equipment (PPE). The Biden administration is also expected to propose a new rule on procedural regulations for its new chemicals program in its waning months, which a future Harris administration would likely implement.

Harris’s administration would seek to implement the Biden EPA’s chemical risk assessment and management rules, while also planning to address the risk of existing chemicals and emerging contaminants through a series of new rules expected starting in 2025.

Targeting Emerging Contaminants

The Harris administration is also likely to take the lead in addressing risks from emerging contaminants. In late 2023, the EPA granted a petition to assess and manage the risk of  6PPD (a chemical that is known for stabilizing rubber products and which has been used in car tires) and its breakdown product, 6PPD-quinone, in the environment, following a petition from several Tribes to regulate the chemicals. The agency also granted a petition to regulate three different per- and polyfluoroalkyl substances (PFAS) formed during plastic container fluorination. The EPA had previously denied almost all petitions for rulemaking under TSCA in previous administrations, indicating an interest in continuing to aggressively regulate emerging contaminants via TSCA’s risk management process.

Risk Management Actions under a Harris Administration

The EPA will likely continue to push out risk management actions on existing chemicals in a Harris administration. The agency is expecting to propose and finalize risk management actions for a variety of chemicals in 2025, including Cyclic Aliphatic Bromide Cluster (HBCD), N-methylpyrrolidone (NMP), and C.I. Pigment Violet 29. Once the agency is finished with risk management actions for the First 10, it will likely begin to regulate other existing chemicals more quickly as the guardrails for risk management regulations will have already been established.

However, under Harris, the EPA would likely continue the use of certain high-profile chemicals for “critical uses,” as indicated by a planned agency rule that would allow federal agencies and associated contractors to continue using chemicals “to prevent significant disruptions to the national economy, national security, or critical infrastructure.” The EPA has consistently recognized that some uses of targeted chemicals for these “critical uses” will continue, at least temporarily, such as a 2023 framework that carves out plans for the EPA to sanction the uses of certain per- and polyfluoroalkyl substances (PFAS) that serve a critical federal need.

Chemical Regulations under a Trump 2.0 Scenario

Narrow Rules and Rollbacks of Biden-era Regulations

A second Trump term would likely resemble his first term, where the agency rolled back Obama-era regulations or sought to narrow the scope of its reviews of some chemicals. In July 2017, the EPA issued a set of rules for evaluating the risk of chemical substances but excluded reviewing risks from legacy uses and disposals of a target chemical. The Ninth Circuit Court of Appeals vacated this aspect of the rule, determining that the EPA could not exclude those uses and disposals. Although Trump may not revisit this rulemaking, there are a wide array of other rules that were or are planned to be released that may be vulnerable to review.

If Republicans capture the House, Senate, and Presidency in the 2024 elections, many chemical regulations could be subject to being overturned under the Congressional Review Act (CRA). The CRA allows an incoming Congress to review, and potentially overturn, regulations submitted within the last 60 legislative days of the previous Congress. The CRA lookback period began in late May 2024, and covers all regulations released since then. The Biden administration focused on releasing its marquee rules before this deadline, though it still has several important rules planned that would be vulnerable to a CRA resolution, including the planned final updates to new chemicals regulations under TSCA.

Trump’s planned regulations would also be colored by his having already served his first term, limiting him under the Constitution to one remaining four-year term. The traditional note-and-comment rulemaking process takes years to complete from initial drafting to a final, published rule. That means that the EPA under Trump would need to be judicious about which rules it considers most important to finalize during that period, and which rules would get less emphasis. The impact of the constitutional limit to Trump’s remaining time in office would be hammered home further if Republicans also control Congress, which would likely mean that future EPA budgets get slashed, significantly reducing the regulatory drafting power of the agency.

Project 2025 Considerations

While Trump has downplayed Project 2025, the effort by the Heritage Foundation to build a framework for its favored policies in a future Trump administration, the chapter on the EPA was written by former Trump EPA Chief of Staff Mandy Gunasekara, and it would likely form the basis for the thrust of EPA regulation in a second Trump term.

Project 2025 contemplates a wide array of changes to the Office of Chemical Safety and Pollution Prevention (OCSPP), the entity that oversees the TSCA program. A Project 2025-inspired EPA would seek to reduce the agency’s dependence on hazard-based approaches like the Integrated Risk Information System (IRIS) for risk assessment and management, in addition to speeding up pace of evaluations for new chemicals. Reduced dependence on IRIS assessments of chemicals would likely lead to speeding up chemical regulations, as investigations into the program have determined that almost all assessments experience delays. The decision would also supercede the EPA’s current assumptions about PPE with a new assumption that all workplaces are following Occupational Safety and Hazard Administrations (OSHA) regulations and wearing proper PPE. This would have the impact of reducing the regulatory burden for employers. Project 2025 also calls for applying a “real-world use” standard for determining the risk of chemicals and redeveloping a framework for risk management approaches for chemicals.

What’s Next

The election will determine the outlook for policies governing chemicals in the next administration, but the choice of who will lead the EPA and OCSPP will also have a large impact on chemicals policy. Under a Harris administration, current EPA Administrator Michael Regan may depart, which may reduce some of the agency’s focus on environmental justice. The potential loss of current OCSPP Assistant Administrator Michal Freedhoff, should he leave the agency, would be a significant blow to chemicals policy under a Democratic administration. Likewise, who Trump would pick as both EPA Administrator and OCSPP Assistant Administrator will help set the tone for chemicals policy under a Republican administration.

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