truth and lies

The Value of Knowing and Caring about What’s Actually in Legislation

It looks as though the Senate is likely to vote on TSCA reform this week and the propaganda machine is in full swing. Yesterday, I took a call from New York Times columnist Joe Nocera, thinking he was writing about the legislation and what the issues were. I didn’t realize he was actually writing a column about us, instigated, as he admits, by his “old friend” at the Environmental Defense Fund’s affiliate. The column is flat wrong, but it also provides an opportunity to talk about where we are and what’s at stake.

{Update 10/9: Senate action on the bill has been delayed until at least the week after next due to disagreements within the Republican Majority.}

First, why now?
Last week, word leaked out in the trade press that Senators McConnell, Inhofe and Boxer had reached an agreement to bring TSCA reform to the floor. (We’ve been opposed to this bill, as most of you know, though we have lauded progress when its been made.) Under the agreement, Senator Boxer would drop her threat to filibuster, a right she planned to exercise, in exchange for changes to the bill (though she would not be voting for the bill). Senator Boxer’s improvements have not been made public, but they are expected to be in the area of preserving some state authority on chemicals.

Separately, Senators Markey (D-MA) and Durbin (D-IL) announced on Friday that they had also negotiated a number of changes to the legislation in exchange for their support of the bill. Again, because a new version of the bill has not been made public, we can’t yet judge the details. The changes, as described by the Senators, all sound positive.

Assuming the reports are accurate, the Senate bill will likely have been improved in key ways, including more money for EPA and less preemption of states. That’s the good news.

But according to the reports, there will also be bad news. The legislation will likely continue to contain a number of problematic provisions, including preempting states in the absence of federal action, making it harder for EPA to regulate chemicals in imported products, and numerous other special interest doo-dads and distractions that take away from the purpose of reform.

Our message to the Senate, and to our supporters to bring to the Senate, is to keep these problems on the table as problems that must be solved in the next round, which would normally be a conference committee with the House. The House bill avoids the problems of the Udall-Vitter bill (though it has some of its own). Senators who have signed on to the Senate bill already, we hope, can support strengthening it in conference. Senators who do not support the bill can express their opposition, but also their hope that these issues will be addressed in conference, producing a final package that they would then be able to support.

This is hardly an unreasonable, wildly obstructionist stance, especially by Washington standards. We’re pointing out deficits in a piece of legislation and calling for them to be fixed as part of the official process, which isn’t over. Outrageous!

So back to that Nocera column, given the stance I outlined above, why the need for an attack piece on us and the rest of the health and environmental community, at this moment? The bill has the votes. The next steps in the process are pretty clear. The reason is that EDF sees the Senate bill as “theirs” and they are marketing themselves and trying to differentiate their brand. The House legislation, which in many ways is a more real compromise, disrupts that marketing. Nocera didn’t even know about the House bill until I pointed it out to him, and it gets a mere parenthetical, dutiful comment. But it is the version of TSCA reform that already passed the House in June by a vote of 398 to 1. If the article was actually about the value of compromise, you’d think Nocera would have noticed this bill, or made it the feature of the story. Why was that bill less controversial than the Senate bill has been?

The answer is that it represented the kind of rational process of compromise and legislation that Nocera says he supports. Chairman John Shimkus of Illinois, a conservative Republican, and Congressman Frank Pallone of New Jersey, an environmental champion, learned from the stalemate that the Vitter-Udall legislation had produced in the previous year. They decided to write a new bill from scratch that focused on the essentials of reform for both sides. Most of the fundamentals of reform from a public health point of view were included. Most of the industry’s fundamentals, including expansion of preemption, were also included. Most of the over-reaching special interest provisions in the Senate bill were excluded, something which took real political will and even courage on the part of both legislators. (The bill does have shortcomings too, which we have said should be addressed.)

Each of the things we’re highlighting as problems in the Senate bill, which so angers Nocera, is not in this broad, bipartisan House bill. For example, it does not roll back EPA’s ability to intercept toxic chemicals in imported products. Most people would think chemical reform should make it easier for EPA to do that, right? The House bill provides for preemption, in fact, but only when EPA has actually acted on a chemical or declared it safe. The Senate bill, in contrast, preempts states before EPA has acted, potentially delaying needed policy interventions. The Senate bill has a potential loophole for “low priority” chemicals that get set aside without a full safety review. It’s not in the House bill. Finally, the Senate bill, as exhaustively detailed by our colleague Bob Sussman, who held senior positions at EPA, makes EPA do a ton of new work that would distract from the business of testing and regulating chemicals. It makes EPA rewrite policies and guidance through costly rule makings, for example, in areas where it already has plenty of policy and guidance. Some in the chemical industry want this extra bite at the apple. The House bill does not give it to them. The bill is also widely viewed to be more clearly drafted and less prone to litigation.

I pointed out this substantive contrast with the House bill to Nocera, but apparently he wasn’t interested in the substance. He had already decided on his one-sided approach and just needed a quote. But the substance is exactly the point. Will people be protected? In an age of limited government, shouldn’t we focus as much of EPA’s limited resources as possible on the core tasks of protecting people?

And this gets to my last point where Nocera is flatly wrong. EDF supposedly “rolled up their sleeves” on the bill, making it better, while the rest of us just opposed. In fact, EDF merely lost their shirt requiring a very broad coalition to roll up our sleeves. The bill EDF negotiated and endorsed did not contain any of the fundamentals of reform. It did not establish a health-based standard. It did not protect vulnerable populations. It rolled back EPA’s authority over new chemicals. It blocked states not just from enacting their own rules, but even from co-enforcing federal chemical rules. The list goes on and on. It did not reflect any of the principles EDF itself had enunciated for years. And yet, EDF was very proud of the bill, even insisting that the initial criticism raised by others could jeopardize their carefully crafted compromise. Once the smoke cleared and the broader public interest community reviewed the bill, experts and organizations quickly rallied to put the substance of the debate front and center and we’ve been doing so every since.

The good news, therefore, is that this is, in most ways, no longer “EDF’s bill.” It has improved in spite of the cover that EDF provided for the bill, and precisely because of constructive, substantive opposition. The broader constellation of health and environmental experts can take some credit for getting the bill closer to a shape where it could really help people. But there is still critical work to do. The process isn’t over.

Finally, we have never criticized EDF publicly until now, and would not, but for Nocera’s column, because it is widely understood that EDF agreed to the original bill in error. That’s an open secret in Washington and it can happen to anyone.

There is no political imperative for Fred Krupp (EDF’s director) and Dominique Browning to launch this attack through Nocera, as they apparently did. That means they did it to grab credit, differentiate their “brand,” and rewrite history in the process, all at the expense of further improving the legislation to better protect public health and the environment. That lacks integrity.

Tomorrow or the next day, whenever the new version of the legislation is made public, we will go back to our usual program of focusing on what is actually in the legislation and how to make it better. I hope you’ll join us.