E. Donald Elliot

Born: April 4, 1948 | Chicago, IL, US

E. Donald Elliott clerked for Judge Gerhard Gesell and Chief Judge David Bazelon, both of the US Court of Appeals for the District of Columbia Circuit; and served as General Counsel for the US Environmental Protection Agency. Elliott begins his interview by emphasizing that confidentiality about legal matters during his tenure at the EPA. He then discusses the beginnings of Toxic Substances Control Act (TSCA) and its relation to Resource Conservation and Recovery Act. He concentrates on concepts of risk and prevention, explaining their changing interplay over the years. He describes what he wishes the EPA’s role could be and what it is, decrying especially the “disaster” of the failure of the EPA to regulate asbestos.

Access This Interview

The information listed below is current as of the date the transcript was finalized.

			

Interview Details

Interview no.: Oral History 0686
No. of pages: 26
Minutes: 81

Interview Sessions

Jody A. Roberts and Kavita D. Hardy
22 January 2010
Willkie Farr & Gallagher LLP, Washington, DC

Abstract of Interview

E. Donald Elliott obtained his bachelor’s degree and his law degree from Yale University, where he now teaches. He clerked for Judge Gerhard Gesell and Chief Judge David Bazelon, both of the US Court of Appeals for the District of Columbia Circuit; and served as General Counsel for the US Environmental Protection Agency. Since leaving the Agency he has been in private practice, specializing in environmental law.

Elliott begins his interview by emphasizing that confidentiality about legal matters during his tenure at the EPA. He then discusses the beginnings of Toxic Substances Control Act (TSCA) and its relation to Resource Conservation and Recovery Act. He concentrates on concepts of risk and prevention, explaining their changing interplay over the years. He describes what he wishes the EPA’s role could be and what it is, decrying especially the “disaster” of the failure of the EPA to regulate asbestos. Noting especially a case involving a judgment against Corrosion Proof Fittings. Elliott believes that the major reason for failure in this major public health initiative was the conservative interpretation of the law. He also believes that this decision detracted power from Section 6 of TSCA.

According to Elliott, instead of using Europe’s “precautionary principle,” the EPA must now show strong evidence of harm in all areas; that is, regulation must now hinge on risk assessment, not on prevention of harm. Other attempts to use Section 6 also have not succeeded. In Ethyl Corporation v. EPA, Judge James Wright established the precaution principle but was reversed by the Supreme Court, which held that hazards are a matter of fact, not policy; furthermore, this decision removed “deference” to the EPA that previously had been assumed, thus establishing “hybrid rulemaking” that made Section 6 much harder to implement.

In general, Elliott believes that the EPA is responsible for maintaining public health and should use police power to regulate in order to prevent harm from pollution. He prefers the Registration, Evaluation, Authorisation, and Restriction of Chemical substances (REACH) approach in Europe, maintaining that Americans do not trust government as much as Europeans do. He affirms Judge Harold Leventhal’s dictum that regulation should balance the risk of false negatives with the risk of false positives. Using the standard of “reasonable assurance of no harm” works for food quality but not for hazardous materials; in cases involving such materials overregulation is preferred. From his perspective, the Clean Air Act and Superfund are EPA’s finest achievements. Elliott has spent his career trying to “mesh” science and the law.

Education

Year Institution Degree Discipline
1970 Yale University BA
1974 Yale University JD

Professional Experience

US District Court for the District of Columbia

1974 to 1975
Law Clerk to Gerhard Gesell

US Court of Appeals for the District of Columbia Circuit

1975 to 1976
Law Clerk to David L. Bazelon, Chief Judge

Leva, Hawes, Symington, Martin & Oppenheimer LLP

1976 to 1980
Associate

Yale University

1981 to 1992
Professor of Law
1992 to 1993
Julien and Virginia Cornell Chair in Envrionmental Law and Litigation
1993 to 2011
Adjunct Professor of Law

University of Chicago

1985 to 1986
Visiting Professor of Law

General Electric Company

1985 to 1989
Special Litigation Counsel, Corporate Environmental Programs

Georgetown University

1986 to 1987
Visiting Professor of Law
2001 to 2009
Adjunct Professor of Law

US Environmental Protection Agency

1989 to 1991
General Counsel

Fried, Frank, Harris, Shriver & Jacobson LLP

1991 to 1996
Partner and head of the Environmental and Produce Safety Department

Paul, Hastings, Janofsky & Walker LLP

1996 to 2003
Partner and co-chair of the national environmental practice group

Willkie Farr & Gallagher LLP

2003 to 2013
Partner and chair of the Environment, Health and Safety Department

Covington & Burling LLP

2014 to 2017
Senior of Counsel & Co-chair, Environmental Practice Group

Honors

Year(s) Award
2003 to 2009

Board of Environmental Studies and Toxicology, National Academy of Sciences

2003 to 2009

Fellow, American College of Environmental Laws

2003 to 2009

Senior Fellow, Administrative Conference of the United States

2003 to 2009

Boards, Environmental Law Institute and Center for Clean Air Policy

Table of Contents

Early Years of Toxic Substances Control Act (TSCA)
1

Elliott's early career suit against Donald Clay and Environmental Protection Agency (EPA) for not regulating asbestos in public schools. Asbestos guidelines established as result. Corrosion Proof Fittings v. EPA limited power of TSCA.  Ernie Rosenberg. Section 6 as lever to get negotiation. Confidentiality required of Elliott, who was general counsel. William Reilly and Terry Davies drafted TSCA about 1970. Roger Strelow and Resource Conservation and Recovery Act (RCRA) first invoked pollution prevention, now called green chemistry. Paul Anastes, “Father of Green Chemistry.” F. Henry Habicht and concepts of risk; risk assessment; market-based systems;  internationalism; pollution prevention. Ten years of work on asbestos abatement regulation as major public health initiative; catastrophic failure. Reasons for failure. Fraudulent injury claims. Scientific Advisory Board to reevaluate, using risk as metric across programs.  Asbestos Ban and Phaseout Rule a test of EPA’s ability to prevent pollution.

Attempting to Expand TSCA's Scope
10

“Precaution principle” used in Europe. High burden or proof is required. More articles about asbestos than about anything else except ionizing radiation. Regulation struck down, hence public health “disaster.” Voluntary industry agreements have led to no more asbestos. Asbestos as test case. Section 6 rendered much more difficult to use. Edward Warren and Gary Marchant, opponents’ lawyers, “best environmental lawyers for industry.” Argument hinged on risk assessment, not prevention. Result requires least drastic remedy. 

Fallout for Future of TSCA
14

Section 6 cannot be used for cross-media puporses. Turning away from prevention began with benzene and cotton dust cases in Occupational Safety and Health Administration (OSHA). Ethyl Corporation v. EPA established precaution approach. Hazards to be defined by “delegated decisions of legislative policy.” Judge James Skelly Wright. Supreme Court held that hazards are matter of fact, not policy. Differences among Circuits, especially Fifth, Eleventh, and District of Columbia. Policy judgments crucial; theory abandoned in favor of hybrid rulemaking after Ethyl.  EPA should have appealed Corrosion, as asbestos has no thresholds. Twenty years of OSHA, seven regulations; but number of regulations not important if change in behavior effected. Michael Shapiro:  Ten percent of resources used to determine course of action, ninety percent to prepare for court. Courts should balance fact and policy but assume conscientious honesty of scientists and defer to EPA. Judge Harold Leventhal and International Harvester Company v. Ruckelshaus:  must balance risks of false positives and false negatives.

More General Thoughts on TSCA
21

Using "reasonable assurance of no harm" as standard in Food Quality Protection Act okay, but not for hazardous materials. Judge David Bazelon. Corrosion case about the most comprehensive evidence Agency could provide; Judge Smith’s decision wrong. One hundred thousand pages of documents, 10,000 documents testifying to harmfulness of asbestos. Justice Benjamin Cardozo’s belief that judges must be given flexibility compared with Judge Smith’s belief that law must be strictly defined. Circuit hunting. Wants all TSCA cases tried only in District of Columbia Circuit. Blanket authority for EPA. Kepone and James River. Industry and TSCA. Environmentalists, EPA, and industry compromising on regulation: everyone goes away a little unhappy (Judge Gerhard Gesell’s dictum). Elliott has spent career trying to mesh science and law.  Bazelon, Wright, and Leventhal willing to err on overregulation side. Toxicologists, including Elliott’s wife, disagree about science of secondhand smoke, but he thinks regulating it good anyway. Clean Air Act and Superfund best successes of EPA.

Index
24

About the Interviewer

Jody A. Roberts

Jody A. Roberts is the Director of the Institute for Research at the Science History Institute. He received his PhD and MS in Science and Technology Studies from Virginia Tech and holds a BS in chemistry from Saint Vincent College. His research focuses on the intersections of regulation, innovation, environmental issues, and emerging technologies within the chemical sciences.

Kavita D. Hardy

Kavita D. Hardy was a research assistant in the Environmental History and Policy Program at the Chemical Heritage Foundation. She received a BA in chemistry and in economics from Swarthmore College.