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Comment by unglaublich | Hacker News Reader

"The fifth circuit judges wrote that the EPA would have to regulate the containers under Section 6 of the Toxic Substances Control Act (TSCA), which the judges and Inhance claim would require the EPA to take into account the economic impact on Inhance. The company has said a ban on its fluorination process would put it out of business."

With that mindset we would still have Asbestos factories around. The economic situation of polluters should be completely outweighed by the health and environmental concerns of the population.

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The article mischaracterizes the decision and the law. The economic analysis under Section 6 requires the EPA to do a system-wide cost-benefit analysis: https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pd... (see p. 10). The question isn’t the economic impact on the polluters per se, but the economic benefits of the use of the chemical versus the economic costs. For example, if asbestos was the only way to have fire-proof insulation, an economic analysis might well show that the benefit of having insulated houses that don’t burn down outweighs increased cancer deaths. This is a common requirement in most environmental statutes.

It's not a question of protecting the producer, it's the fact that the producer is making something that has at least some benefit to society - the containers. If we stop them from producing the containers, then society loses out on that benefit. It may still be worthwhile to stop them, but businesses exist to the benefit of their customers and stopping them is not without it's own costs.

We banned the use of asbestos in most situations, and therefore lost the benefit of an excellent building and insulation material. But we decided that was a worthwhile tradeoff considering the well-established health impacts.

There are plenty of alternative packaging materials without the health effects of PFAS, just like we learned to build properly and safely without asbestos.

Same holds for all extinct products, like leaded paints and leaded gasoline.

We can't really expect customers to make informed decisions about the large scale environmnetal and health impact of products, regulating them is exactly the job of the governing body.

> There are plenty of alternative packaging materials without the health effects of PFAS, just like we learned to build properly and safely without asbestos.

That’s exactly the sort of thing that would be addressed in a cost-benefit analysis. If there’s good alternatives, the cost of the ban is lower. The issue isn’t whether expert agencies should be making these decisions, it’s that the expert agency here didn’t actually do the expert analysis the law requires.

What's the cost of polluting the environment? Burning a limited reserve of fossil oils? Ripping up developing societies?

The cost to humanity is enormous. The cost to a company is zero.

Wouldn't banning the material also lead to market pressure to develop containers that aren't in violation? Why are we ignoring this point?

Exactly. The market is not asking for PFAS containers, the market is asking for containers with the price and quality aspects of these containers.

Market pressure to produce an asbestos functional equivalent has led nowhere (at a similar cost), after several decades.

Since the outcome is unknown until after a huge amount of time and expense, how would you factor it in beforehand?

Does 'similar cost' include all the down-stream healthcare and lost productive life years cost?

No, because that also cannot be known until after all the downstream effects happen in fact and people in the future tally up the costs.

So in either case it makes no sense to try to factor in ‘market pressure’ beforehand.

or why not ban in 18 months, like they do in the eu, give companies time to retool

The economic impact requirements has lobbyist fingerprints all over it. Imagine if the FDA had to consider the economic impact of rejecting or accepting new therapeutics, or if the FBI can just decide not to prosecute some individuals because the economy would lose money!

All meaningful regulations will have negative economic impacts on those being regulated, that’s why the Republican conference loves de-regulation, it makes their donors and themselves more money!

That actually is exactly what the court told the EPA to do.

>TSCA section 6(b)(4) requires EPA to establish, by rule, a process to conduct risk evaluations. Specifically, EPA is directed to use this process to “determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant to the risk evaluation by the Administrator, under the conditions of use.”

https://www.federalregister.gov/d/2023-23428/p-52

Also, this was even linked right below the paragraph you cited.

The article says, "However, Peer noted Section 6 states health risks should be weighed “without consideration of costs or other non-risk factors”."

Peer is not the court, it's a non-profit involved in the litigation. You can read the opinion, and the court doesn't tell the EPA to use section 6, just that they can't use section 5: https://www.ca5.uscourts.gov/opinions/pub/23/23-60620-CV0.pd...

>the court doesn't tell the EPA to use section 6,

Yes they do:

>Second, the EPA may regulate chemical substances under Section 6. See 15 U.S.C. § 2605. The mandate of Section 6 is broader than Section 5, in that Section 6 applies to all chemical substances, not just new chemical substances or significant new uses of a chemical substance. See id. § 2605(a). However, the rulemaking process under Section 6 is also more rigorous than Section 5: It requires the EPA to conduct a cost-benefit analysis, weighing the negative effects of the chemical substance against the benefits of the substance and the economic consequences of prohibiting or limiting the substance. See id. § 2605(c)(2)(A)–(C). No such analysis is required under Section 5.

>We hasten to add that our ruling to this effect does not render the EPA powerless to regulate Inhance’s fluorination process. The agency can properly proceed, abiding the APA’s procedural guardrails, under TSCA’s Section 6 by conducting inter alia the appropriate cost-benefit analysis required for ongoing uses—a proposition even Inhance concedes. The EPA is just not allowed to skirt the framework set by Congress by arbitrarily deeming Inhance’s decades-old fluorination process a “significant new use.” See Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 105–06 (2015).

Except we did still have asbestos factories around until recently. This ruling is in line with the previous asbestos one, so just 30 more years until PFOA, etc. will be properly banned.

https://www.epa.gov/asbestos/asbestos-ban-and-phase-out-fede...

The US has actually managed to shut down asbestos factories? I'm impressed.

Surely it's good that there is one country in the world that's prepared to allow unrestricted usage of any type of chemical, a kind of vast environmental petri dish, so that the rest of the world can find out exactly what the human effects will be?

It seems that conservatives in the US would be all in favour of taking this role. Perhaps it doesn't even need to be the entire country, but just a few conservative states?

Disclaimer: I live a safe distance from the US.

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