Court Orders EPA to Redo Weak Rule for Toxic Flame Retardant Chemical

A federal appeals court ruled that the Environmental Protection Agency (EPA) violated the law when it refused to regulate significant exposures to the toxic flame retardant decabromodiphenyl ether (decaBDE), which is linked to a wide array of health harms, including harm to the developing brain and the reproductive and immune systems. EPA currently allows products containing decaBDE to be recycled into everyday products, like children’s toys and kitchen utensils, and to be disposed of in household trash.

The ruling from May 13 found that the EPA failed to adequately justify its decisions not to regulate the toxic chemical in recyclable plastics, solid waste, wastewater discharges from known decaBDE sources, and sewage sludge used as fertilizer.

“The court’s ruling makes clear that the EPA cannot ignore its duty to protect Americans from highly toxic, long-lasting chemicals like decaBDE,” said Earthjustice Attorney Kelly Lester. “For too long, communities around the country have been left to bear the health consequences of exposure to this highly toxic chemical, with children especially vulnerable to its harms. This decision requires the agency to follow the science and the law to protect public health.”

Congress singled out decaBDE and other highly toxic, long-lasting chemicals that build up in the bodies of people and wildlife for expedited, stringent regulation under the Toxic Substances Control Act because they are among the most dangerous chemicals in commerce. On behalf of the Yurok Tribe, Alaska Community Action on Toxics, the Center for Environmental Transformation, and Consumer Federation of America, Earthjustice sued the EPA in 2021 for failing to take all practicable measures to limit exposure to decaBDE as federal law requires. Leading scientific experts with Project TENDR filed an amicus brief explaining the urgency of regulating all significant sources of decaBDE exposure to protect children and other high-risk populations.

DecaBDE is a toxic flame-retardant chemical used in many everyday products, including electronics, furniture, curtains, and car parts. It can also be found in recycled-content products such as children’s toys, kitchen utensils, and travel mugs. Studies have linked exposure to decaBDE to serious health problems, including cancer, developmental and neurological harm, liver damage, and immune system damage, and the chemical also pollutes soil and water and poses serious risks to imperiled salmon populations. Infants and children face especially high risks because they are more likely to inhale or ingest the chemical and are more vulnerable to its effects, while workers and communities near manufacturing or disposal sites are also heavily impacted. Indigenous communities, including members of the Yurok Tribe and Alaska Native communities, are disproportionately affected because decaBDE harms salmon and other culturally significant species and builds up in these and other important traditional food sources.

Quotes from our clients

“EPA must do its job and protect Americans from toxic chemicals like decaBDE,” said Courtney Griffin, director of Consumer Product Safety at Consumer Federation of America. “This decision underscores that the agency can no longer delay action while children and other vulnerable populations remain exposed to a dangerous chemical linked to serious health risks. The time for meaningful action on decaBDE is now.”