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Today, the Environmental Protection Agency is poised to release a report that recommends against setting drinking water limits for the amount of perchlorate, a byproduct of rocket fuel, in drinking water. The report is a prime example of why we shouldn’t let govermental standards pre-empt state causes of actions.

Perchlorate is a wide-spread toxin that can seriously damage thyroid function in people. The most vulnerable are fetuses and newborns who use formula mixed with contaminated water. In such situations, the contamination can lead to permanent IQ and other problems. And it’s a widespread problem, affecting an estimated 20 to 40 million Americans. It is such a problem that NASA had to issue press releases that the mere occurrence of perchlorate in Martian soil samples didn’t rule out life on Mars.

But should it be regulated?

For the last six years, a fight has been raging between EPA scientists, who advocate regulating perchlorate, and the White House and Pentagon, who oppose it. With the release of the report, it is apparent that the White House won the fight.

Not only does this decision put Americans at risk, it is a perfect example of how regulatory bodies become too political.

According to the Washington Post, the proposal — which assumes the maximum allowable perchlorate level is 15 times what the EPA had suggested in 2002 — was heavily edited by the White House Office of Management and Budget. The OMB eliminated key passages citing studies that found perchlorate very dangerous and even asked the EPA to use a new computer model to calculate the chemical’s risk.

And scientists appear outraged:

"They have distorted the science to such an extent that they can justify not regulating" the chemical, said Robert Zoeller, a University of Massachusetts professor who specializes in thyroid hormone and brain development and has a copy of the EPA proposal. "Infants and children will continue to be damaged, and that damage is significant."

As I mentioned, while this is appalling, I am more concerned about what it says about preemption. The Bush Administration and other tort reform advocates are continually pushing for preemption — that is, they argue that if a product complies with governmental standards then the manufacturer of that product (whether it’s a toy, car, prescription drug, or in this case drinking water) should be immune from lawsuits based on that product. That MIGHT (and I emphasize the might) be acceptable when government is properly doing its job to regulate products, but it’s a ridiculous notion when the agencies are understaffed, the agencies don’t have the resources to do their job, or, as here, the decision is not a scientific one, but a political one.

For more on preemption, you can read these links:

Preemption Threatens Public Safety

Tort Reform By Preemption

Tort Reform By Rulemaking

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