Pick Your Poison

The GOP Congress is working on a new toxic chemical bill. Should Obama sign it, or wait for the next president to get a better deal?

On January 9, 2014, thousands of gallons of a chemical called crude methylcyclohexane methanol, or MCHM, burst from a holding tank into the Elk River in West Virginia’s Kanawha Valley. The substance, a solvent used in coal processing, quickly flooded the water treatment plant directly downstream. The spill infiltrated the drinking water of 300,000 people in the Charleston area. It was the largest chemical contamination of drinking water in U.S. history. First responders, including state public health officials and the Centers for Disease Control and Prevention, had almost no information on MCHM’s toxicity to humans. As medical and chemical experts scrambled for answers, Governor Earl Ray Tomblin, a Democrat, hastily banned the use of tap water for anything but putting out fires and flushing toilets.

The lack of scientific knowledge about MCHM might sound like a breach of chemical safety laws, but it was perfectly legal. In fact, the current law, the Toxic Substances Control Act (TSCA), is so lax that it does not require human health assessments for chemicals currently in commerce in the United States, of which there are more than 80,000. Since the TSCA’s passage in 1976 it has never been substantially updated. The law’s provisions are so inadequate that asbestos, a known carcinogen, is still legal.

At last a TSCA reform bill is making headway in Congress. The Frank R. Lautenberg Chemical Safety for the 21st Century Act, coauthored in the Senate by New Mexico Democrat Tom Udall and Louisiana Republican David Vitter, would require the Environmental Protection Agency to test and regulate every chemical in commerce. The agency has had the power to assess and control substances it considers hazardous, but review has never been obligatory, and establishing controls has been nearly impossible due to legal constraints within the TSCA. Since the law’s enactment almost four decades ago, the EPA has reviewed only about 200 chemicals and restricted just five.

Environmental organizations and health advocates are pleased with the Senate bill for its expansion of EPA power, although they’re sharply critical of other provisions. It’s encouraging that Udall, who helped lead the fight against oil drilling in the Arctic National Wildlife Refuge, is working to overhaul the TSCA. But it’s unsettling how much he and his dozen or so Democratic cosponsors are willing to give away. The bill’s favoritism to industry is apparent upon seeing which Republicans are on board. Along with its coauthor, Vitter, a longtime friend to petrochemical interests, over a dozen Republicans have signed on as cosponsors, including Oklahoma Republican James Inhofe, who is ever loyal to the oil and gas industry and a self-proclaimed enemy of the EPA. Inhofe is also notorious for his belief that climate change is a hoax. He chairs the Environment and Public Works Committee and is flexing his influence to hasten the bill’s passage.

The American Chemistry Council, the trade organization that speaks for the industry, including major chemical companies like ExxonMobil, Dow, and DuPont, is also hyping the bill, which it helped author. The Chemistry Council spent more than ever during the 2014 election cycle. In addition to doling out over $11 million for lobbying, the group contributed millions of dollars to the campaigns of lawmakers involved in the TSCA reform debate, and spent $4 million for television and radio spots to help its allies win, according to the New York Times. The industry spread its largesse to Democrats as well, notably to Udall. He received direct campaign contributions from the Chemistry Council and benefited from the tens of thousands of dollars the organization paid for an adulatory television spot aired in his home state during the midterms.

“The American Chemistry Council spent a lot to elect this Congress and they expect to get their money’s worth,” said Scott Faber, vice president of government affairs at the Environmental Working Group, an advocacy organization.

Indeed, this set of circumstances has created a peculiar moment of role reversal for the right. Petro-chemical behemoths along with the Republican Party’s anti-environmentalists are joining a gaggle of Democrats to support a bill that stifles state control to centralize power on the federal level. And the bill, at least on its face, gives the EPA greater jurisdiction to limit and ban chemical use. But what lies beneath this apparent expansion of EPA authority—and the much-touted bipartisanship of Udall-Vitter—is a law that could effectively disable chemical restrictions, making protections even weaker than they already are.

Why doesn’t the industry simply work to keep the current version of the TSCA in place? “A completely dysfunctional TSCA was okay by the chemical industry,” says Andy Igrejas, from Safer Chemicals, Healthy Families, which represents hundreds of public health, labor, and environmental groups. In many ways, the TSCA has given the industry free reign, Igrejas says.

But these freedoms have begun to backfire. Growing numbers of consumers have become attuned to the dangers of chemicals used in household items like furniture upholstery, cleaning fluids, and plastic food containers. While the EPA fails to act, scientists in the private sector, at universities, and in state-level agencies carry on researching the ecological and human health effects of such substances. Recent studies have shown that many common chemicals, such as flame retardants, solvents, and bisphenol A, or BPA, linger in the environment and in our bodies—with such ill effects as disrupting hormone function and causing birth defects, reproductive disorders, and diseases such as cancer. Increasingly, this research is getting widespread media attention. A recent segment on 60 Minutes exposed high levels of formaldehyde, which can cause respiratory diseases and cancer, in the products of the flooring company Lumber Liquidators, leading the firm’s stock to temporarily plummet and tarnishing its reputation.

Informed by these findings, public health and environmental advocates are making tougher demands and consumers are choosing less toxic products. In response, major brands and retailers are avoiding certain chemicals in the goods they sell. In its personal care products, Procter & Gamble has cut back on substances such as formaldehyde, hormone-like phthalates, and the antibacterial agent triclosan, a known endocrine disruptor. Home Depot, Walmart, and Target are scaling back on products that contain toxins—or outright removing them from store shelves. In 2014, Walmart notified suppliers that it would restrict goods containing certain endocrine disruptors, mutagens, and carcinogens. Home Depot put controls on fertilizers with neonicotenoids, neurotoxins largely believed to be responsible for the decline of honeybees.

Amid this increasing awareness, spills like that of MCHM in West Virginia stoke larger mistrust of the chemical industry and the government’s ability to protect the public. Faber from the Environmental Working Group said these marketplace shifts make defending the TSCA untenable. “The U.S. is one of the few developed nations in the world that doesn’t regulate chemicals all that closely,” he said. “That isn’t working anymore.”

And the chemical giants know it. “It’s no secret that our industry was motivated to secure reform because we were seeing an increasing decline in the public’s confidence in EPA’s assessment of chemicals and ensuring they were safe in the marketplace,” said Cal Dooley, the Chemistry Council’s president and CEO, in 2013. (The organization declined to grant an interview for this article.)

While preserving consumer trust is critical, this is not the industry’s only motivation for TSCA reform. Chemical interests perceive this legislative change as an opening to dismantle the one front on which real progress in chemical regulation has been made: state laws.

In the absence of appropriate federal protections, states have stepped into the breach, promulgating their own rules. Under current TSCA regulations, unless and until the EPA regulates a chemical, states can issue their own limits. Those that have done so include California, New York, Vermont, Washington, Massachusetts, and Maryland. Among the many rules are New York’s ban on children’s goods that contain dangerous levels of hazardous substances and California’s far-reaching Proposition 65, passed in 1986. Among other provisions, Prop. 65 put much tighter strictures on industrial discharges into waterways and forced manufacturers to alert the public before knowingly and intentionally exposing them to chemicals deemed hazardous by the state. The latter provision has resulted in a wide range of consumer-goods companies not only using warning labels to indicate potential dangers, but also reformulating their products to reduce toxic chemicals.

Unsurprisingly, chemical manufacturers don’t like this. The industry complains that state-level powers have led to a regulatory patchwork that is unwieldy and costly. “If a chemical maker disagrees with one state determination, why should that one state influence an entire national product line for a company?” said Lynn Bergeson, a chemical industry lawyer at the firm Bergeson & Campbell. “Why should one state dictate the market?”

On behalf of the chemical industry, Udall-Vitter impinges on states’ authority by creating a regulatory void. This is one of the most contentious measures in the bill. Under the proposed law, the EPA must designate as “high priority” chemicals it views as hazardous enough to warrant a full safety review. Once this designation is assigned to a chemical, Udall-Vitter bars states from initiating new constraints or enforcing existing regulations on that substance until the EPA completes its assessment, a process that could take four and a half years or more. While states can apply for waivers from this void, those waivers can be stalled by legal challenges from the industry.

“Why would we hold back regulating the very chemicals that EPA says are the most toxic?” said David Goldston, government affairs director at the Natural Resources Defense Council. Attorneys general from nine states have written letters opposing Udall-Vitter because of its preemption measures. At a March 18, 2015, Senate hearing on the bill, Maryland Attorney General Brian Frosh submitted testimony that the legislation “includes the near evisceration of state authority to regulate
toxic chemicals.”

One reason the industry wants to minimize state power is because when a state regulates a chemical, that substance will likely be shunned in markets nationwide regardless of the EPA’s ultimate safety determination, according to Bergeson. “You don’t want to authorize states to do something that could be disadvantageous for business,” she said.

Further stifling state authority, the environmental and administrative law scholar Thomas McGarity said that hidden within Udall-Vitter’s preemption measure is a detail that many environmentalists have overlooked. The courts could interpret Udall-Vitter in a way that nullifies state common-law claims. “State common law is about compensating people for damages—it gives incentive to companies to make their products safe,” said McGarity, a chair in the University of Texas at Austin School of Law and an expert on the subject. His reading of Udall-Vitter is that it will likely “wipe out common law.” The chemical makers, he said, “know exactly what this bill would do”—that is, short-circuit legal challenges when their products injure people. “That makes this bill worse than the existing TSCA,” he said.

Needless to say, advocating for more federal power puts the bill’s Republican cosponsors in a distinctly hypocritical position. Inhofe, Michael Crapo from Indiana, South Dakota’s John Thune, and Missouri’s Roy Blunt are among the bill’s supporters who defend states’ rights when it comes to issues like health care, marriage equality, and women’s rights. But when it’s expedient, these same Republicans abandon the principle.

Not only do the chemical companies want to centralize rule making to tame state legislatures run by Democrats who support strong controls, they also want to concentrate regulatory authority on the federal level. It’s easier to keep tabs on potential rules if they are coming primarily from a single source, the EPA. The most ideological chemical industry players like the Chemistry Council and the major oil companies are well versed in the federal rule-making process, which is rich with opportunities to intervene. They know the key junctures at which to lobby and suggest changes along the administrative route a rule takes before it is finalized. Having most chemical regulations pass through this lone portal gives the industry a lot more leverage.

It also means that when Republicans hold both houses of Congress, as they now do, they control the EPA’s purse strings. Cutting the agency’s budget could, in one fell swoop, drain its regulatory capacity.

So, where will the EPA get the money to implement Udall-Vitter? The bill allows the agency to charge industry for the assessments. But it sets a cap of $18 million per year. The sum certainly would not cover the full cost of the program. “In agency budget terms, it’s the equivalent of your grandmother putting $5 in your birthday card,” said Igrejas of Safer Chemicals, Happy Families, in a recent blog post.

Ultimately Udall-Vitter is industry’s bill. And it’s distracting. There is a range of important measures that have been left out altogether, such as requiring the EPA to study low-level chronic exposure to chemicals, which is how most people come into contact with substances known to cause health problems. Nor does the bill include requiring the agency to investigate the interaction of chemicals in the human body and within ecosystems, even though this is how chemicals exist in daily life. Instead, the EPA will study these substances in isolation. Also absent is any discussion of mandating producers to establish their chemicals’ safety before a substance hits the market. This is known as the precautionary principle, a regulatory approach that says that, in the absence of evidence, it’s better not to take chances. (This has been the norm in the European Union for years.) Instead, Udall-Vitter admits the great majority of new chemicals into commerce before they are tested, and it places the onus not on the companies to demonstrate safety, but on the EPA.

If consumer, health, and environmental groups let the forces keep working that have pushed the chemical industry this far, they may well get more. And citizens’ groups might have greater influence if Democrats take additional congressional seats and win the White House in 2016. Consider that recent iterations of TSCA reform bills in 2013 and 2014 contained even more radical state preemption—one version was so extreme that it stripped all existing state chemical regulations and barred states from enacting any new rules in the future. The industry has softened its demands due to pressure from Democrats, most notably California Senator Barbara Boxer, as well as environmental and health advocates, and even corporations within its own ranks. Last December Proctor & Gamble’s regulatory and technical relations manager for North America, Julie Froelicher, was critical of blocking states from helping enforce chemical regulations. She said being a co-enforcer “is a role that states should and could play” under a reformed TSCA. In late April, the strongest industry players relented: the current Udall-Vitter bill no longer impinges on this aspect of state authority.

Public awareness of the dangers of toxins in daily life will only mount, tainting many companies’ reputations and hurting bottom lines. Key lawmakers and human and environmental health advocates could take a tougher stance, continuing to amplify voices critical of toxics, backing the chemical industry further into the corner. If this version of Udall-Vitter becomes law, it will be nearly impossible to get the sweeping changes needed to give it backbone. The momentum is on the side of the people and the planet. Because of that, the existing weak TSCA can’t stand. If chemical makers aren’t given the out Udall-Vitter offers, then they might have to accept real reform.

Heather Rogers

Heather Rogers is a journalist and author whose work has appeared in the New York Times Magazine, ProPublica, and Mother Jones. She has written two books: Gone Tomorrow: The Hidden Life of Garbage and Green Gone Wrong: How Our Economy Is Undermining the Environmental Revolution.