It’s generally impossible to say why something didn’t happen in a given situation. But in this case, industry pushback, aided by antiregulatory attitudes that have dominated in the U.S. since the 1980s, clearly played a role. In 1989 the EPA tried to use its authority under the Toxic Substances Control Act (TOSCA) to phase out and ultimately ban most asbestos-containing products. But a company named Corrosion Proof Fittings, backed by several trade associations, successfully challenged the rule in federal court. The plaintiffs claimed that the agency’s rule would save only three lives over the course of 13 years and at “an approximate cost of $128–277 million.” That was patently false, and the court did not accept it. But it did accept a different complaint about the procedure by which the EPA had come to its proposed remedy.
The EPA could have proposed a new rule, but during the 1990s the political tide had turned against “big government” as various industry groups worked to demonize “regulation,” and the EPA stood back. Rather than attempting to propose a new, broad rule under TOSCA, the agency focused on more limited and specific regulations, such as developing guidelines to accredit asbestos-removal personnel, or regulations that were explicitly authorized by Congress.
One such regulation was the 1990 Asbestos School Hazard Abatement Reauthorization Act, which empowered the EPA to help schools deal with asbestos on their grounds. As a result of these choices, asbestos use was greatly reduced, but it was not eliminated, and a number of asbestos-bearing products remained on the market.
Moreover, throughout the 1990s and 2000s industry groups pursued a strategy similar to that of the tobacco industry, attempting to cast doubt on the science that demonstrated the harms of asbestos. Among other things, they attempted to discredit asbestos researchers—particularly Selikoff—as zealots and to muddy the scientific waters by claiming that only certain mineralogical forms of asbestos were hazardous, when in fact the science supported no such distinction.
In 2016 Congress amended TOSCA to restore to the EPA some of the authority that had been stripped from it by the courts. The asbestos ban is the EPA’s first new rule under the amended law.
America was once a leader in occupational health and safety. Now we are laggards. It took 126 years for us to heed Lucy Deane’s warning about the dangers of asbestos. We need a better way to translate science into policy.