The Environmental Protection Agencyunchained?

Harry C. Alford | 11/28/2012, 5 p.m.

The votes have been cast. The ballots have been counted. And for most Americans, the day-to-day attention paid to the political process--free of the spectacle of a presidential election--fades into the background.

But what exactly is poised to happen within the government now that the spotlight has dimmed?

After one of the most polarizing and incendiary election cycles in recent memory, with billions spent on negative ads and countless accusations hurled from one side to another, we find ourselves right where we started.

Democrats retain control of the Senate by a slightly larger margin--a major disappointment for Republicans who just months ago dreamed of big pickups. The House remains in Republican hands, but not without some bumps and bruises for the majority party after having lost senior members in key committee positions, from Cliff Stearns to Mary Bono-Mack.

Most importantly, President Obama won a decisive second term in office. After having governed with one hand tied behind his back by re-election concerns for the past two years, the Obama administration is now free to pursue desired policy without the encumbrances that have kept many of the party's favored agenda items in the barn for the past two years.

Perhaps nowhere will the impact of this mandate be more abundantly and immediately clear than on the pages of the Federal Register, where bodies like the Environmental Protection Agency are now poised to take meaningful and immediate steps forward on big-ticket--and costly--priorities that were kept under wraps by election-minded liaisons in the White House for the last two years.

Many of the initiatives pursued by EPA and others will be headline-drivers. Others, though, are poised to slide under the radar. But this lower profile doesn't mean the impacts will be any less significant.

Take, for instance, EPA's push to gain greater authority over chemicals through so-called voluntary programs that don't outwardly restrict the use of specific chemicals, but implement non-binding standards that simply serve as de facto regulations--encouraging de-selection in the marketplace.

Highlighting this effort will be a push for increased authority under the Toxic Substances Control Act (TSCA). Observers expect that the newly unencumbered EPA will more freely utilize its authority under Section 6a, which allows them to ban or restrict chemicals. Previously, this process has been dependent upon thorough review and political input. With a new mandate, however, rule-makings are likely to be initiated far in advance of the science inherent to the process being settled.

Where direct rule making fails or cannot be applied, the aforementioned "voluntary" initiatives provide EPA with a backdoor regulatory opportunity--establishing controls on out-of-favor substances without going through the rigors of the rule-making process or in-depth scientific analysis. The EPA's Design for the Environment (DFE), for instance, is a voluntary program, that does not employ established, consistent and rigorous scientific criteria, is not authorized by statute and follows no formal regulatory process or guidelines, making it challenging for manufacturers to effectively engage and push for standards consistent with the U.S. risk-based regulatory approach. The result is that chemicals that have been proven safe in scientific review must also seek additional voluntary endorsement or be deemed inferior.