Thursday, July 23, 2015

Why the TSCA Reform Bills Should Become Law Even Though They Won't Make Us Any Safer

Recently there has been a sudden surge in support for passing bills in both the House and Senate to modernize the four-decade-old Toxic Substances Control Act, i.e., TSCA. This post will explain why this is happening, why TSCA Reform can pass now, and why it should pass - even though it likely will do nothing substantial to make us safer.

What is TSCA anyway?

For those who missed it, TSCA was passed in 1976. That's right, when Gerald Ford, the only President never to have been elected to either the presidency or vice-presidency (Hint: Nixon and Agnew were, in fact, crooks), signed it into law. TSCA was designed to regulate commercial chemicals before they could be put on the market. Well, except for the 65,000 or so chemicals that were already on the market - those chemicals got grandfathered onto an Inventory, a list of chemicals it was okay to use despite none of them ever having been tested for safety. New chemicals had to go through a review by the Environmental Protection Agency, though the EPA could not actually require any safety testing unless they could prove that the chemicals were dangerous...which they found hard to do since they couldn't require anyone to do any safety testing. You can see why there was a need to reform TSCA.

Which no one did for nearly 40 years.

Why COULDN'T TSCA be reformed before?

Senator Frank Lautenberg (D-NJ) tried. In 2005 he introduced the first of several TSCA reform bills that were immediately relegated to the wastebasket with zero action. Not one ever got out of committee. For ten years the Republican Party, along with a few Democrats from states heavy on chemical industry influences, managed to block a half-dozen or more attempts by Lautenberg in the Senate (and Henry Waxman [D-CA)] in the House) from ever getting a vote.

Lautenberg's initial bill would have fundamentally changed our chemical control system by requiring companies to provide substantial health and safety data on chemicals before they went onto the market. It would have also required companies to provide data for all of the 65,000 chemicals that had been grandfathered onto the Inventory (plus, all the 25,000 or so additional chemicals that were added to the Inventory after only rudimentary model-based evaluation by EPA).

While needed, the requirements were functionally unworkable under our current review structure. When Europe passed a law called REACH that required essentially the same data, they also created an entirely new chemicals agency staffed with at least 500 people and a system for collecting and evaluating the millions of data points that would be coming their way over a ten year period.

A new agency! The EPA would not have been able to handle the workload, especially given the Congressional defunding and forced retirement of key staffers that has been plaguing them for the last decade or more. There is no way Congress would even boost their staff to handle the new data, never mind create an entirely new agency. That one fact killed any chance of a workable solution.

Lautenberg continued to try to revise his bills over the next 10 years, making them more and more industry-friendly with each iteration. His latest version, offered up soon before he passed away, was supported by then-committee chairwoman Barbara Boxer (D-CA), who frequently sparred with then-ranking member and serial climate denier James Inhofe (R-OK). Her conflicts with Inhofe were seamlessly passed to his replacement, Senator David Vitter (R-LA), when he began working with Lautenberg on a new, even more industry-friendly, bill. After Lautenberg's death, Senator Tom Udall (D-NM) joined with Vitter to come up with the precursor to the current Senate bill. While the bipartisanship was nice, the dropping of all the fundamental reforms originally proposed by Lautenberg make Boxer a bitter enemy of the bill.

Why CAN TSCA reform pass now?

The answer is easy, though it's also a reflection of the rather cynical power of lobbyists when it comes to making laws. After blocking serious consideration of TSCA reform for a decade, Industry found itself in a position where Republicans were in control of the House and Senate. Sensing that the window of opportunity was short - there is no guarantee the Democrats won't take back the Senate in 2016 - Industry decided to facilitate the bill-writing process. How much of the bills were written, as opposed to merely influenced, by Industry is something only insiders know, but clearly the new bills serve Industry more than they serve opposing environmental and health Advocacy groups or the public. And so bills suddenly appeared in the Senate and the House, the latter of which has been adamantly against anything that smells of new regulation, never mind complete reform of the primary chemical control law.

Another reason TSCA reform can pass now is because Barbara Boxer announced she is retiring at the end of her present term, i.e., after the 2016 elections. Given her long-time power and influence on the key committee in charge of reform, this decision clears the way for Democrats to support the TSCA reform bill presented by Industry via Vitter/Udall.

It's also clear that everyone knows that this bill (the Senate one) is the only bill that could ever get passed, either before, now, or later. This is it. It might get a few tweaks still, but the basic requirements and structure are the only ones that can garner enough support - and do so at the right time, which is now - to ever get passed. It's also clear that President Obama will gladly sign any bill that passes Congress given the rarity of such an event.

Why SHOULD TSCA reform pass now?

Part of the reason it should pass is what I just said in the paragraph above. It's the only one that can pass, and no one would argue that modernization of TSCA isn't way overdue.

Another reason is because EPA has been effectively hog-tied for the last 10 years with very little it could do to ensure the safety of chemicals, especially legacy chemicals, i.e., those on the Inventory that have never been tested for safety. The new bills don't require up-front testing to be submitted on old or new chemicals en masse, but the bills do provide EPA with a better mechanism for requesting data be provided on specific chemicals. It isn't great, but it's better. More importantly, the bills provide a better mechanism for looking at those legacy chemicals. That is a big deal. (Insert appropriate Joe Bidenesque qualifier)

In any case, the new bills will allow EPA to move forward even though they likely won't have the resources to move very far or very fast.

What ROADBLOCKS remain to making TSCA reform into law?

Anyone familiar with Washington knows that Congress can often find a way to self-destruct, even on things that most of them agree on. With the election year already in its craziest jockeying for attention period, the window for passage is small, and getting smaller every day. Senators believe they can get a vote on their version of the bill before the fast-approaching August recess, and with more than half of all Senators and true bipartisan support, passage is likely. Which gets us to the first roadblock.

The House version of the bill, which passed by a vote of 398 to 1, is laughable. While that might seem harsh, it's likely an understatement. As already noted, the Republican-controlled House is strictly anti-regulation. Because of radical gerrymandering, House Republicans know they are likely to be reelected no matter how irresponsible or radical they act. Not surprisingly, there is tacit understanding from all parties that the more contentious portions of the House bill will essentially be morphed into something palatable for all. In other words, the final TSCA reform law will largely reflect the Senate version. The Senate version even has the most politically safe name it could have been given, the "Frank R. Lautenberg Chemical Safety for the 21st Century Act."

The second and third roadblocks, which will be part of the first one above, are that there may be tweaking of two key provisions in the bills: preemption and risk standard. I won't go into detail about what they are because, frankly, they have no actual meaning with respect to the functioning of the law.

That last sentence will come as a shock to Industry and Advocacy lobbyists who have spent much of the last few years arguing over these exact provisions. But that's that point. These two provisions got the attention because they distracted from the real issue, which is how much data to require up-front for new and legacy chemicals. As seen above, Industry clearly won that battle.

The preemption issue has been claimed as the most important issue by Industry. The threat of up to 50 state-based chemical control laws is why Industry has wanted TSCA reform so badly (the Industry-friendly version of TSCA reform, to be clear). Industry strongly lobbied for provisions in the new TSCA that would bar states from taking action while EPA is evaluating the chemicals, a process that in some cases has taken decades with no resolution. The risk standard has also been contentious for basically the same reason, to make EPA spend tons of time building a case AGAINST a chemical (rather than Industry making a case FOR the chemical).

So if they are so important, how can they be so meaningless?

While on paper these may seem like they could have a massive impact on regulation, in the real world they don't. In this real world you get two things happening:

1) No matter what decision EPA reaches, they will get sued. If Industry is unhappy, Industry will sue the EPA and/or use whatever "hearing" provisions in the new law to keep EPA from banning or severely restricting their chemical for as long as they can. Using this strategy under the old law has kept some chemicals on the market for decades, all the while providing substantial profit while the manufacture develops a replacement. Similarly, if Advocacy groups are unhappy, they too can sue and/or use whatever provisions to keep the pressure on the chemical. Granted, the options and success rate of Advocacy groups are much more limited than they are for Industry - this new law will be no exception - but the power of Advocacy groups doesn't stop there anyway.

1a) As a corollary, EPA knows that its greatest pressure point is the threat of action. In the past EPA has managed to get Industry to participate in "voluntary" actions to increase data collection and influence how a particular company makes business decisions about pursuing putting, or keeping, chemicals on the market. The new TSCA law will increase EPA's ability to put unofficial pressure on manufacturers because the law will give EPA more authority to require data for chemicals raising safety questions.

2) The real power of Advocacy groups is in building public pressure on target chemicals. In the past this has meant some chemicals that are safe-for-use (i.e., safe if used properly) may have been unfairly pressured out of existence. On the other hand, chemicals that might have stayed on the market despite safety concerns have been forced into oblivion because of public pressure. The new law should actually make it easier to exert public pressure because supposedly the more questionable chemicals could be required to have a more substantial data set.

So in practice it will be public pressure that will take an even greater role in whether a chemical stays on the market (or perhaps even gets there in the first place). Despite attempts to limit the ability of states to regulate chemicals (i.e., preemption), states will still be able to take action on anything the EPA hasn't walled off by their own investigations. For any state-centric concerns, i.e., create undue risk within a state, that state will likely still have the opportunity to address those concerns. In any case, states and Advocacy groups will be gearing up to educate the public about chemicals of concern, and that market-based pressure will do more to change the decision-making habit of Industry than the new regulations.

The bottom line is that the TSCA reform law that emerges in the next few weeks or months will likely pass, and it should pass. While some Advocacy groups will complain that it doesn't go far enough (which it doesn't) and Industry groups will complain in public of the new requirements (while popping champagne corks in private boardrooms), the fact is that TSCA reform is desperately needed, the final bill will be the best that anyone can hope to achieve, and despite its limitations it will provide real improved opportunities for EPA to move forward in their quest to protect the public from unreasonable risk of chemicals. The law itself won't make us safer, but the fact that we'll be focused on identifying and prioritizing chemicals to take a closer look rather than waving our hands in the air doing nothing...well, that focus will make us safer.