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Can Congress Ratify a Global Toxics Treaty?

A Bipartisan Crossroads on Global Toxics?

Last month, the feisty lame duck Congress heeded a bipartisan chorus of advice, from Henry Kissinger to Hillary Clinton, in voting to ratify a new nuclear weapons treaty to reduce the risks of dangerous materials falling into the wrong hands. Could the new Congress find bipartisan agreement to ratify a global treaty to reduce the risks of the “worst of the worst” toxic chemicals?

The answer hinges on whether Congress can decide how to upgrade the 1976 Toxic Substances Control Act (TSCA), a law so weak and toothless it leaves the United States sidelined in the international chemicals arena. The nub of the issue is that under TSCA, the U.S. Environmental Protection Agency (EPA) is nearly powerless to regulate dangerous chemicals, even when the rest of the world has taken action. To ratify the POPs treaty, we have to strengthen this obsolete law.

The Stockholm Convention on Persistent Organic Pollutants (POPs) targets some of the worst global pollutants, like PCBs, DDT and dioxins. It has been ratified by 172 nations, including key U.S. allies and trading partners, but not by the United States. If Congress approaches the issue in a constructive way – empowering EPA to identify and regulate chemicals that are persistent, bioaccumulative, and toxic – it could pave the way for Senate advice and consent for U.S. ratification. It could also position the United States to be a positive force for global progress in eliminating this pernicious class of pollutants.

If done poorly, POPs implementing legislation could backfire. This is the way the issue played out under the Bush administration, when chemical and pesticide manufacturers backed Republican leadership in the House and Senate for a weak POPs bill. A repeat could set U.S. ratification back more years and potentially poison the politics for long-sought TSCA reforms.

The United States was a leader in drafting the POPs treaty in the late 1990s. We had already taken action on most of the obsolete pesticides and industrial pollutants on the original “dirty dozen” POPs list. The U.S. government also won commitment to a rigorous, scientific review process to evaluate whether other POPs chemicals warrant global action. President George W. Bush signed the Stockholm treaty in 2001, giving the issue genuine bipartisan appeal.

So far, so good. However, the U.S. Senate will not provide its “advice and consent” for POPs ratification unless the United States has legal authority to implement its obligations under the treaty. In short, Congress must amend TSCA (as well as the federal pesticide law), so that EPA can require basic reporting, prevent exports of POPs, and regulate future POPs that the United States agrees should be added to the treaty.

The debate unfolded the last time the House was under Republican control. The chemical industry sought to ratify the Stockholm POPs treaty, without fixing TSCA’s core problems. In 2006, the late Paul Gillmor (R-OH) voted a bad POPs bill out of the Energy and Commerce Committee. The bill would have further frustrated EPA regulation (PDF) of POPs, pre-empted stricter state actions, and dealt the U.S. government a weak hand in international negotiations with Europe, China and the rest of the world. Democrats, led by Representative Hilda Solis (now Secretary of Labor), introduced a competing bill featuring three key principles (PDF): timely U.S. action, a health-based standard on “new” POPs, and respect for state laws.

Environmental groups, health professionals, industrial workers, Native Americans, and state officials rallied around the Solis bill. The chemical industry backed the Gillmor bill. Despite Republican control of the House, Senate and White House, Congress adjourned in 2006 without acting on POPs. While Congress has idled, the world has moved on. Meanwhile, nine more POPs have been scheduled for elimination under the treaty and more are under review.

There was renewed hope for a POPs breakthrough in 2010, when bills were introduced in the Senate (S. 3209) and House (H.R. 5820) to overhaul TSCA in major ways. The bills included provisions to enable U.S. implementation (PDF) of the Stockholm Convention and two other chemicals agreements. The bills would have given EPA clear authority to identify and regulate chemicals that meet the treaty’s definition of POPs. The bills would have also closed the export loophole, and allowed the United States to share chemical data with other countries.

The chemical industry and its allied associations sought and won delays in the process, filled half the seats in a series of stakeholder dialogues with the House bill’s sponsors, but offered no alternative proposals. Despite significant concessions in the final bill to address specific concerns, the chemical industry immediately rejected the bill. Neither bill ever came to a vote.

With new Republican leadership now in the House, the chemical industry may face better prospects for dusting off its previous POPs proposals. But polls consistently demonstrate broad public support across party lines, race, gender and economic status for regulating toxic chemicals. For this reason, faux reform in the name of POPs ratification would be unlikely to pass in the next Congress.

The United States has an interest in a successful POPs treaty, because Americans benefit when other countries stop using dangerous chemicals that get into the air and water and wind up in our food, our families, and our communities. We simply cannot wait for others to act. EPA needs authority to reduce the risks of POPs at home and to guide other countries into action. That is what international leadership is all about.