Two developments this week got me thinking about how our government deals – or fails to deal – with risk. First, EPA proposed to ban the manufacture (including import) of chrysotile asbestos. EPA’s authority for doing so is the Toxic Substances Control Act which provides that: 
if EPA determines through a TSCA section 6(b) risk evaluation that a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or other non-risk factors, under the conditions of use, EPA must by rule apply one or more requirements to the extent necessary so that the chemical substance or mixture no longer presents such risk.
One might ask – and I do – how one determines what constitutes an “unreasonable” risk, without consideration of cost. If cost is irrelevant, wouldn’t any risk be “unreasonable”? I am not suggesting that the proposed rule is inappropriate. I don’t know the science. I just don’t see how rational risk-benefit decisions can be made without consideration of cost.
The second development was the news that researchers have now found microplastics in the lungs of living human beings. Wisely, the authors do not take a position on any potential regulation of plastics or microplastics. Instead, they appropriately note that:
The knowledge that MPs are present in human lung tissues can now direct future cytotoxicity research to investigate any health implications associated with MP inhalation.
Detecting small particles of microplastics in the lungs is troubling. While my scientist friends keep reminding me of the limits of such analogies, the history of asbestos certainly supports the notion that the finding of small particles in the lungs is worthy of investigation.
At the same time, the “precautionary principle” is not a sound basis for regulations. As Cass Sunstein has noted,
the precautionary principle provides help only if we blind ourselves to many aspects of risk-related situations and focus on a narrow subset of what is at stake.
In a more pithy op-ed context, Sunstein called the precautionary principle “deeply incoherent.”
So, let’s figure out what impacts plastics are having, and let’s regulate appropriately on the basis of what the science tells us. And, just to be clear, I think we already know enough to take aggressive action with respect to certain types of plastic.
My only plea is that such regulation should be based on careful analysis of actual data, rather than on the simplistic approach represented by the precautionary principle.
The post Microplastics in the Lungs: The Next Asbestos or Are We Just Catastrophizing? first appeared on Law and the Environment.