Why Basic Protections from Harmful Chemicals Are So Hard to Get

The environmental movement has been campaigning since 2005 to modernize U.S. chemicals policy, an uphill battle. The greens have done everything by the book -- written a model law, built a national grass-roots coalition, and dispatched lobbyists to capitol hill.  Now, however, the chemical industry has executed a classic "divide and conquer" maneuver, cleaving the greens into disarray. If the present momentum continues, Congress could end up passing a chemical reform bill that's far worse than what we've got now.

What we've got now is the Toxic Substances Control Act (TSCA, pronounced Tosca) enacted in 1976 and not revised since. As the New York Times described it May 24, 2013, "[TSCA] purports to regulate potentially harmful chemicals in industrial and consumer goods, like plastic bottles and children's pajamas. But the law is better known for its failures than for its successes. Of roughly 85,000 chemicals registered for use in the United States, [since 1976] only 200 have been tested by the Environmental Protection Agency [EPA] and fewer than a dozen -- including polychlorinated biphenyls, dioxin and hexavalent chromium -- have been restricted.

"After a federal appeals court denied the E.P.A. the authority to issue new limits on asbestos in 1991 [22 years ago], the agency all but abandoned its efforts to enforce the law, even as evidence of health problems from exposure to a range of chemicals in consumer products has piled up," the Times wrote.

TSCA works like this: New industrial chemicals are presumed to be safe. Ninety days before selling a new chemical, a manufacturer must notify EPA. At that time, the manufacturer must divulge any toxicity data it has for the chemical. If there's no toxicity data, there's nothing to divulge -- a powerful incentive to avoid safety testing. EPA then has 60 days to approve the new chemical or to demand more toxicity data. But EPA's demand for more data must be supported by substantial evidence that new information is warranted by an "unreasonable risk" to public health or the environment. Obviously, this is a catch-22: without evidence of harm (or safety), EPA has no power to demand studies that might show harm (or safety). So every year, on average, 700 new chemicals enter commercial channels untested for effects on human health or the environment. That's TSCA in a nutshell. (For more on U.S. chemicals policy, see herehere, and here.)

A Campaign to Reform U.S. Chemicals Policy

A national campaign to reform TSCA bubbled up from the grassroots where people from Maine to California had been waging trench warfare against the petrochemical industry since 1978 when toxic waste was first discovered oozing onto a school playground at Love Canal in Niagara Falls, N.Y., where kids were getting sick.  Nationwide, when people started looking, they found toxic waste everywhere.

Communities like Woburn, Mass. and Toms River, N.J., discovered clusters of disease among their children, and suddenly ordinary people found themselves locked in battle with armies of lawyers representing major corporations -- in Woburn's case, Beatrice Foods and W.R. Grace, and in Toms River's, Ciba-Geigy -- to end the toxic trespass. The Woburn fight was documented in a book and movie, both titled A Civil Action. Dan Fagin documented the Toms River fight in a book by that name. At the height of "the toxics movement" an estimated 7,000 local groups were engaged in hand-to-hand combat with one chemical polluter or another in all 50 states, plus Puerto Rico, Guam and the Virgin Islands.

Along the way, there were state-level victories. For example in 1986, a ballot initiative ("Prop 65") forced California state government to list all chemicals known to cause cancer, birth defects, or other reproductive harm. The list gets updated once a year and now contains about 800 chemicals. California businesses must notify their customers about the presence of any of these chemicals in products they sell.

But ultimately town-by-town, fight-by-fight opposition to toxic chemicals wasn't changing national policy. In May, 2004, a disparate group of toxics and environmental justice activists met in Louisville, Ky. to hammer out a "Louisville Charter for Safer Chemicals" -- the Magna Carta of TSCA reform.   In 2005 Senator Frank Lautenberg (D-N.J.) began carrying the banner for modern chemicals policy, and a serious national TSCA reform campaign began to take shape. In 2008 Lautenberg introduced his first TSCA-reform proposal, the Kid-Safe Chemicals Act.

Features of Kid-Safe included:

1. Require Basic Data on Industrial Chemicals

Chemical companies must demonstrate the safety of their products, backed up with credible evidence. Chemicals that lack minimum data could not be legally manufactured in or imported into the United States. [Section 505]  In other words, no data, no market.

2. Place the Burden on Industry to Demonstrate Safety

It's not up to government to prove harm; it's up to industry to show that their products pose a reasonable certainty of no harm. EPA must systematically review whether industry has met this burden of proof for all industrial chemicals within 15 years of adoption. [Section 503]

3. Restrict the Use of Dangerous Chemicals Found in Newborn Babies

Hazardous chemicals detected in human umbilical cord blood would be immediately targeted for restrictions on their use. [Section 504]

4. Use New Scientific Evidence to Protect Health

EPA must consider and is authorized to require additional testing as new science and new testing methods emerge, including for health effects at low doses or during fetal or infant development and for nanomaterials. [Section 503]

Together, these features of the Kid-Safe Chemicals Act add up to a "precautionary approach," turning TSCA on its head. The Kid-Safe reform assumes that industrial chemicals may be harmful until chemical companies produce data showing their products pose a reasonable certainty of no harm.

Plus, the mere presence of industrial chemicals in cord blood triggers special action to eliminate those exposures, which are presumed to be undesirable in a newborn. 

In a world where cancers, attention deficits, autism, asthma, and diabetes are increasing in children year after year, precaution for chemical exposures is clearly a rational approach. 

Grassroots and Grasstops

To pass legislation in Washington, grass-roots campaigners from the hinterland need the insider known-how of the "grasstops" lobbying organizations in D.C. -- in this instance, NRDC (Natural Resources Defense Council), EWG (the Environmental Working Group), and EDF (Environmental Defense Fund). For their part, the grasstops lobbyists in D.C. need grass-roots groups all across the country to pressure key legislators at crucial times in the legislative sausage-making process.

Sometimes the grasstops in D.C. forget that they can't win without support of a broad grass-roots base. There's no better example of this than the inside-the-beltway campaign in 2009 to pass "cap-and-trade" legislation to curb emissions of carbon dioxide. The grasstops groups, led by Environmental Defense Fund (EDF), imagined that they could play David to the fossil fuel industry's Goliath (oil, coal, natural gas, and electric utilities) without engaging grass-roots campaigners nationwide. Predictably, Goliath slew David handily.

Just as cap and trade was going down to embarrassing defeat, the grasstops took a different tack for TSCA reform -- they helped launch a large national grass-roots coalition now known as Safer Chemicals Healthy Families (SCHF), today comprising some 450 groups with perhaps 11 million total members. From the beginning, the coalition was partly staffed by grasstops: the coalition's web site lists its two "issue exerts" as Sarah Jensen, a physician with NRDC, and Richard Denison, a scientist employed by EDF. Indeed, the press release announcing the formation of the coalition August 4, 2009 listed Richard Denison of EDF as the first of two spokespeople for the coalition.

Thus, it all seemed to be working the way it was supposed to. Except that Congress was not cooperating. The petrochemical industry has a phenomenally deep pocket, and it was not about to roll over for a few green lobbyists, even if they had the backing of 11 million supporters in places like Boise and Little Rock. According to Common Cause, between 2005 and 2012 the chemical industry spent $375 million lobbying to prevent meaningful TSCA reform. That's more than $700,000 for each of the 535 members of Congress.

As time passed, Senator Lautenberg continually watered down his Kid-Safe proposal, each new version weaker than the last. In April of this year Lautenberg and Kristin Gillibrand (D-N.Y.) once again re-introduced a "Safe Chemicals Act." By now, the precautionary approach was long gone, as was the goal of protecting vulnerable populations like babies. 

Senator Lautenberg evidently knew that even this compromised bill wasn't going anywhere because one month later -- May 22, 12 days before he died -- he introduced an even more industry-friendly version, "The Chemical Safety Improvement Act" or CSIA. This time his co-sponsor was Sen. David Vitter, conservative Republican from Louisiana and loyal servant of the petrochemical industry.

To say that Lautenberg-Vitter is industry-friendly understates the case. The chemical industry is salivating over the CSIA.

Here's a short list of industry groups that have endorsed the Lautenberg-Vitter bill: Alliance of Automobile Manufacturers, Association of Global Automakers, Automotive Aftermarket Industry Association, California Building Industry Association, California Chamber of Commerce, California Manufacturers & Technology Association, Consumer Electronics Association, Information Technology Industry Council, Motor & Equipment Manufacturers Association, National Electrical Manufacturers Association, and the Outdoor Power Equipment Institute.

The heaviest hitters supporting CSIA include the U.S. Chamber of Commerce, the Vinyl Institute, and, heaviest of all, the American Chemistry Council, trade association of the chemical manufacturers.

CSIA: "Somewhere between a rout and a retreat"

The position of the Safer Chemicals Healthy Families coalition is crystal clear: "We do not support the legislation in its current form."  Ken Cook, president of EWG in D.C. doesn't mince words: "If you look at the bill Lautenberg was pushing last year, I don't know if this is a retreat or a rout, but it's somewhere in that range," he says of the CSIA.

Objections to the Lautenberg-Vitter CSIA bill include these:

1. EPA must decide that "no unreasonable risk of harm to human health or the environment will result from exposure to a chemical." To determine what's "unreasonable," EPA must do a cost-benefit analysis -- weighing the dollar value of the chemical against the dollar value of the cancers, birth defects, attention deficits, and other diseases it may cause over the years. In such studies, the commercial value of the chemical can be estimated, but the dollar value of the harms is not easily quantified. In the past, after losing too many such duels with industry, EPA has refused to engage, allowing chemicals onto the market unchallenged.  CSIA seems unlikely to change that pattern. 

2. Once EPA determines that a chemical presents "no unreasonable risk of harm" (for example, by refusing to challenge it in a cost-benefit duel) federal and state courts would not be allowed to accept new evidence in toxic tort lawsuits. Whatever evidence was available to EPA at the time of its decision would be the only information that a judge or jury could hear. New scientific studies would be excluded from courtrooms.

3. Lautenberg-Vitter contains sweeping language that preempts states from enforcing existing laws, or adopting new ones, designed to supplement federal law. So California's "Prop 65" labeling requirements would be illegal under Lautenberg-Vitter. Washington state's current restrictions on flame retardants would be nullified. Maine's goal of eliminating toxic mercury from products would be set aside.

The California attorney general's office says Lautenberg-Vitter, as currently drafted, "cripples the police powers that California relies upon to protect public health... and, in addition, severely compromises California's authority to supplement and complement federal efforts to regulate the safety of chemicals."

Greens have universally condemned the Lautenberg-Vitter bill, with one exception: EDF supports the bill and Richard Denison has been lobbying for it on capitol hill.

This is not really a surprise. EDF has long been known as "a home for business-friendly environmentalism."  People who engage with EDF generally do so knowing that it's often on the opposite side of issues that matter to grass-roots pollution-fighters.   

In this instance, EDF's position on CSIA creates a real conundrum for the Safer Chemicals Healthy Family Coalition, where EDF's Denison is both a scientific adviser and a coalition spokesperson yet is employed by an organization lobbying against the coalition's position..

Now, during intense jockeying in the senate, no one can be quite sure who they're talking to when Richard Denison comes knocking. Is he representing EDF, which supports CSIA, or the Safer Chemicals coalition, which opposes it?

The EDF web site is no help in sorting out this question. To a naive viewer, the site could even give the impression that the Safer Chemicals Healthy Families coalition supports EDF's pro-CSIA position, which it emphatically does not. The "Chemicals Policy" page on EDF's site, urging passage of Lautenberg-Vitter, says, "EDF is a founding member of the Safer Chemicals, Healthy Families campaign, a broad coalition of state and national environmental groups, associations of health professionals, advocates for health-affected individuals and environmental justice organizations. The group has launched a broad effort to achieve comprehensive reform of TSCA. The campaign is advocating for a set of legislative proposals in Congress summarized in its platform [PDF]."

Nowhere does the EDF web site clarify that the Safer Chemicals Healthy Families coalition opposes Lautenberg-Vitter, which EDF supports.

The value of EDF's stance to the chemical industry cannot be overstated. With EDF on its side, the Chemical Industry Council's chief lobbyist, Calvin M. Dooley, can tell senators that "reasonable" environmentalists support Lautenberg-Vitter. Only green extremists oppose it.

For its part, EDF management may be feeling a bit desperate to back a winner. With an annual budget of $105 million, and egg on its face from the cap-and-trade fiasco of 2009-2010, EDF perhaps needs to claim a victory after years invested in TSCA reform. Faced with the disastrous Lautenberg-Vitter bill, perhaps siding with the chemical industry against its 450 grass-roots allies in the Safer Chemicals coalition will prove to be a wise financial decision for EDF going forward.

For the Safer Chemicals coalition, on the other hand, Lautenberg-Vitter portends hard times ahead not only for chemicals policy but for the politics of reform more generally. Not only must future coalitions dissect what went wrong this time, but they must try anew to figure out how to discern in advance who are their real friends, and who's likely to sell them out at the last minute.

One thing's for sure: divide and conquer is still industry's most powerful tactic. "We're delighted there's a path forward," says Calvin Dooley of the Chemical Industry Council, "and we're eager to capitalize on it."

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