In March 2024, the Environmental Protection Agency announced, with much fanfare, that it was “banning asbestos.” The EPA rule does ban chrysotile (white) asbestos, which is the most commonly used form of refined asbestos. White asbestos is very easy to shape and work with. However, the rule falls far short of a total ban. More on that below.

The scope of this new regulation is an important question. The delay may be an even more important question. The adverse health effects of asbestos have been documented since 1899. Why did the government, which is supposed to protect vulnerable people who cannot protect themselves, allow companies to keep using a hazardous substance for over a hundred years?

The ban may lower the number of future asbestos exposure victims. The jury is still out on this issue. However, a ban does nothing to compensate prior exposure victims for their losses. Only an asbestos exposure lawyer can do that. Compensation in an asbestos exposure illness claim, like a mesothelioma claim, usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages are usually available as well.

The Asbestos Ban Up Close

University of Nevada geology professor Brenda Buck said the new EPA rule was a “baby step” toward a total asbestos ban. She may be right.

As mentioned, the EPA banned chrysotile asbestos, which is currently the most commonly-used form of asbestos. Other forms, which remain legal to use, include:

  • Antofilita: This kind of asbestos is very similar to chrysotile asbestos in many ways. In fact, much chrysotile asbestos contains anthophyllite asbestos. This substance is rarely used commercially because it’s much more hazardous than white asbestos. But if chrysotile asbestos becomes unavailable, companies may change this stance.
  • Crocidolita: This substance is also known as blue asbestos. It’s generally a liquid that’s sprayed onto building materials. It’s also a common ingredient in pipe insulation, plastics, and cement products.
  • Amosita: Brown asbestos was used most frequently in cement sheets and pipe insulation. It can also be found in insulating boards, ceiling tiles and thermal insulation products.

Two other types of asbestos, Tremolite and actinolite, haven’t been commercially developed. However, if the partial ban takes effect, many companies may give these minerals a second look.

Additionally, the partial ban would not take effect for at least twelve years. So, for the next decade, people will still be at risk.

Reason #1: Asbestos Companies Have Rights Too

English political philosopher John Locke, who inspired the Declaration of Independence, said that all people had the right to life, liberty, and property. Thomas Jefferson, who wrote the Declaration of Indepence, changed the list to life, liberty, and the pursuit of happiness for reasons that aren’t relevant to this blog.

All these rights carry equal weight. Asbestos companies have the right to make money, and people have the right to life. When these interests conflict, courts and asbestos exposure lawyers must draw the lines and weigh the interests.

Furthermore, in the Fifth and Fourteenth Amendment, the Constitution guarantees the right to due process of law. At a minimum, due process usually means notice of the action and, more importantly for our purposes, an opportunity to be heard. 

Environmental regulations usually include multiple opportunities to be heard. The regulating agency usually considers comments. Then, the federal court system has three layers (district courts, appeals courts, and the Supreme Court). An adverse decision at any level derails the regulation. Frequently, politicians don’t have the energy or desire to start over again.

Reason #2: Asbestos Companies Have Good Lawyers

The EPA tried to ban asbestos, or at least ban chrysotile asbestos, in 1989. The asbestos industry fought this ban all the way to the Supreme Court. The Justices ruled that an obscure provision in the Toxic Substances COntrol Act invalidated the ban.

The TSCA required the EPA and all other regulating agencies to use the least burdensome approach in matters like asbestos control. Quite frankly, we’re still not sure what other approach the EPA could have used to protect people. But the Supreme Court didn’t see it that way. You can’t argue balls and strikes with an umpire, and you can’t argue with a Supreme Court decision, no matter how much you dislike it.

Asbestos lawyers weren’t finished. They also successfully prevented Congress from amending the TCSA for over twenty years.

Success in the courthouse probably contributed to success in the statehouse. In the 1990s, a wave of conservative judges appointed by Presidents Reagan and George H.W. Bush slowed the flood of asbestos litigation to a trickle. Indeed, some asbestos companies filed RICO (racketeer influenced corrupt organization) claims against unscrupulous asbestos exposure lawyers. 

For the most part, these claims went nowhere. However, also for the most part, they swayed public opinion against further asbestos regulation.

Reason #3: Politics

Progressive legislators were finally able to overcome the aforementioned influence efforts and amend the offending TSCA language in 2016. At that time, the EPA seemed poised to pass a comprehensive asbestos ban.

But then, quite unexpectedly, Donald Trump won the Presidential election. He tapped Scott Pruitt to head the EPA. Pruitt, as Attorney General for the state of Oklahoma, adamantly opposed what he called the “EPA’s activist agenda.” As head of the EPA, he opposed asbestos regulation and other such measures.

Upon his election, Joe Biden appointed Michael Regan, who was the anti-Pruitt in many ways, as EPA director. Regan has a mixed record with the EPA. He generally champions causes like green energy innovations and the effects of environmental racism. But he’s a young guy (48 years old) who’s made little headway in Washington.

We can hope that, if the new partial ban survives, it will be the first of many “baby steps” toward a total asbestos ban.

Reason #4: Asbestos Companies Have Good PR Departments

We mentioned the recasting of asbestos exposure lawyers as bad guys above. This effort was just part of a huge public relations smoke-and-mirrors campaign that lasted for decades. 

Soviet dictator Josef Stalin once said that a single death is a tragedy and a million deaths is a statistic. The asbestos illness coverup followed that model. As long as the asbestos hurt a lot of other people, no one outside the radical scientific or health community particularly cared about this substance.

THis strategy worked very well for the first half of the twentieth century. But in the early 1960s, victims began filing juicios. These early plaintiffs became the poster children for the harsh health effects of asbestos. They put a face to the suffering.

At the same time, lawsuits allowed lawyers to find damaging industry memos. For example, a 1958 company memo stamped Personal & Confidential stated that “Just as certain as death and taxes . . . if you inhale asbestos dust you get asbestosis."

Once the asbestos exposure issue became personal and the culpability of these corporations became clear, the walls came tumblin’ down.

Reason #5: The Asbestos Industry Relocated

In the movies, fleeing bad guys often try to get across the state or county line to avoid prosecution. That’s not exactly the way it works, but it’s pretty close. So, to reinforce the coverup, much of the asbestos industry moved offshore.

The move was natural, since much of the asbestos industry was already offshore. South Africa is a good example. Remember Amosite asbestos? That’s an acronym for Asbestos Mines of South Africa. Cape, PLC extensively mined in the area and sent the asbestos all over the world. In 2001, Cape agreed to pay £21 million to settle asbestos exposure illness claims.