Legal Challenges to Asbestos Ban Move Forward

The Federal Judicial Panel on Multidistrict Litigation consolidated several legal challenges to the EPA’s March 2024 asbestos ban into the Fifth Circuit Court of Appeals, the same court that overturned a similar ban thirty years ago.

The order includes four cases: Texas Chemistry Council vs. EPA, American Chemistry Council vs. EPA, United Steel, Paper, and Forestry vs. EPA, and Asbestos Disease Awareness Organization vs. EPA. These plaintiffs are all industry or industry-affiliated advocacy groups.

The next step is probably a discovery and pretrial order, which the court should issue within the next few weeks.

The aforementioned March 2024 action bans the importation and use of chrysotile (white) asbestos, the most commonly used form of this substance. The ban is incomplete and, perhaps more importantly for legal challenge purposes, costly.

Chrysotile asbestos, a crumbly form of asbestos that is easy to shape and handle, is only one of four major kinds of asbestos. Currently, the other three are not used very much. However, if the chrysotile ban goes into effect, that could easily change as asbestos-using companies look for alternative substances.

Furthermore, asbestos abatement is very expensive. The process is long, and only a handful of companies are certified abatement contractors. As the plaintiffs in the asbestos ban challenge will no doubt point out, much of this cost will fall on individual homeowners and public school districts.

Asbestos, one of the most hazardous substances in the world, was already heavily regulated when the EPA tried to ban it in 1989. The Clean Air Act and Clean Water Act both addressed toxic substances, although they did not specifically name asbestos. The Toxic Substances Control Act also affected asbestos use. The TSCA also proved to be the 1989 ban’s undoing.

This law included a requirement that a reasonably cost-effective alternative must be available and the EPA must choose the least-costly option when it bans or restricts a toxic substance. The Fifth Circuit ruled that the EPA did not meet these requirements, and therefore the asbestos ban was illegal.

In response, the EPA passed several partial bans, such as a prohibition of asbestos in schools. Unfortunately, the ban did not provide any funding for inspection and abatement. As a result, most schools built before 1980 still have asbestos in their walls and attics.

Contained asbestos is not harmful. But these fibers are very small. 20,000 of them can fit in the space between Abe Lincoln’s nose and mouth on a penny. As a result, these fibers easily leak through hairline cracks in walls and ceilings. That is especially true if builders used chrysotile asbestos. This substance begins breaking down almost immediately after insulation.

After considerable debate and hand-wringing, Congress finally amended the TCSA in 2016, removing the least-costly option requirement. An asbestos ban seemed likely, but Donald Trump’s 2016 election took the wind out of the sails. It’s taken all this time to get it back.385

Not even the best asbestos exposure lawyer has a crystal ball and can conclusively predict what will happen in court. That’s one of the main reasons a settlement is a better option than a trial.

Based on the above discussion, it seems likely the court will uphold the 2024 ban. Already, however, high-priced company lawyers are scouring the law, trying to find a loophole that will enable these companies to keep using cheap asbestos.

We do know that the ban, if it goes into full effect, will not compensate asbestos exposure victims. Only an asbestos exposure lawyer can help with that. Several compensation options are available.

In most states, victims may file civil actions against asbestos providers. Usually, these civil actions alleged that the defendant knew about asbestos health harms and failed to adequately warn people about those harms. Substantial damages, including punitive damages, are usually available in such claims.

Other legal options include workers’ compensation, Social Security disability, VA disability, and bankruptcy victim compensation funds.

Mesothelioma victims need and deserve significant compensation. For a free consultation with an experienced nationwide mesothelioma lawyer, contact the Throneberry Law Group. Virtual, home, and hospital visits are available.