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What are they thinking?

Making sense of the new House legislation

Last Thursday, Representative Shimkus, Chair of the House Energy and Commerce Subcommittee on Environment and the Economy, unveiled new draft legislation called the Chemicals in Commerce Act. A more detailed analysis of the bill can be found here. The purpose of this blog, however, is to explore what the bill might mean politically.

I have to admit that I am genuinely, not rhetorically, surprised by how terrible the bill is. I had been impressed by the number of hearings Mr. Shimkus had on reform of the Toxic Substances Control Act (TSCA), by the openness of his staff, and by the constructive tone and substantive nature of the hearings themselves. In Washington-speak, it seemed to confirm the idea that the chemical industry and some Republicans really wanted “a law” rather than “a bill,” – meaning they were interested in a genuine compromise that could pass and stand up to scrutiny, not just a political statement.

The legislation itself, however, loudly contradicts that notion. To a breath-taking degree it blows off nearly every point of critique that health professionals and advocates as well as environmental experts made about the Senate legislation, the Chemical Safety Improvement Act. The exception is that the House bill is more clearly drafted. The unclear drafting in the Senate bill would have several adverse policy impacts and some of those are now avoided. Unfortunately, the now-clearer policy choices in the House bill are almost uniformly retrograde from the perspective of public health and the environment.

For example, on the threshold issue of fixing TSCA’s current standard – the one that wouldn’t allow the EPA to regulate asbestos – the House bill does not even pretend to reform or redefine it. When the chemical industry was trying to establish its credibility in wanting to reform TSCA in 2009, after a generation of defending it, the first thing they did was announce that they supported changing the current cost benefit standard to a health-based standard. Their glowing support for this bill suggests that conversion was never sincere.

what_are_they_thinkingThe bill almost amounts to a seek-and-destroy mission; a hunt for anywhere at the state or federal level where chemicals are being scrutinized or restricted, followed by an airstrike. For example, it targets EPA’s highly obscure, but somewhat effective, “SNUR” authority, one of the few places where EPA has been able to MacGyver some information and protection with the legal equivalent of paper clips and bubble gum that it has available.

Similarly, because the program for new chemicals under TSCA currently does at least some modest good, the bill seems to go out of its way to do it new harm. It would nullify numerous state requirements on chemicals upon even the slightest EPA action, including disclosure laws in Maine, Washington, and California.

The bill is not the slightest bit credible as an effort to balance the need for progress in protecting public health and the environment while being mindful of industry’s regulatory burden. It is entirely one-sided and backward-moving. But the question is “why?”

Does the bill reflect an industry coalition that straddles those who genuinely want reform with those who really don’t and who therefore only support it if it does more harm than good? If so, then that is not much of a coalition, and it is time for the genuine reformers in industry to speak out. Or is the regulated industry united in its aims and only differing in its diplomacy and public relations? Do they feel they can simply “run the table” and use the power of big money to get Congress to take a whack at pesky states and the handful of EPA employees who actually get to do something on chemicals? If so, they are miscalculating the breadth and depth of public concern on this issue.

The most optimistic answer to the question “why?” is that the House bill is an attempt to pull the rightward pole of the debate farther right. In that case, the idea would be to soon change a few of the more glaring issues in the bill to help position the Senate bill as more centrist, and have health and environmental advocates and their Congressional supporters be thankful for limited changes. But that strategy won’t fly either because what’s at stake is not a choice between “half a loaf” and a “full loaf.” The current choice is between backwards or even farther backwards. Neither bill – as drafted – moves us forward.

The science continues to underscore the stakes involved: unregulated chemicals contribute even more than we thought to the health problems facing millions of American families. (The recent article by Drs. Philip Landrigan and Phillipe Grandjean is only the most recent example.) Congress needs to decide soon if it can move forward with meaningful TSCA reform that makes progress in identifying and restricting the chemicals that contribute to disease and environmental damage – or it needs to step aside. If the reality is that corporate trade associations can only agree on their lowest common denominator – rolling back public health protections – and Congress can only do what trade associations tell them to do, then reform is not worth doing.

The science and the public health concerns are finding a receptive audience and driving positive change at the state level, in the marketplace, and even among major trading partners.

If Congress is serious, it needs to figure out how to join that parade.


(Photo credit: kurichan+ Flickr CC)