Progress, not breakthrough, in Senate reform fight; Most important work lies ahead

Last night Senators Merkley (D-OR), Whitehouse (D-RI), and Booker (D-NJ) announced they were joining Senators Udall and Vitter in a new version of the controversial Senate chemical reform bill. Technically, the new version is a “substitute” of the old that will be adopted today in a voting session of the Senate Environment and Public Works Committee. The vote is an important milestone but it is not the final word.

The three Senators are all strong advocates for public health and the environment. They put their collective backs into getting important changes to the bill. Many, if not most, of the changes are ones that we have specifically called for. Our hats go off to them, truly.

We’re keeping our work boots on, however. And so should you. If the goal is meaningful reform that does some good and no harm, we’re not there yet. Let’s get there.

Here’s the good news:

• The rollbacks to EPA’s authority over imports and consumer products that were in the previous version have been removed.
• The potential loophole where chemicals can be set aside without a safety review (“low priority designations”) will now be subject to the accountability of citizen suits.
• States’ ability to co-enforce federal restrictions is restored (though with some caveats).
• The bill makes some progress in getting EPA to prioritize Persistent, Bio-accumulative Toxins and potentially regulate them more thoroughly.

There are other positive changes that are meaningful, and for which they deserve credit (if not all quite as meaningful as the hyperbolic press release would have you believe).

Here’s the bad news:

• There is a new rollback to EPA’s authority to restrict significant new uses of a chemical.
• The Senators “split the baby” on states’ authority to protect their citizens.

People forget that “splitting the baby” was actually a bad thing in the original Bible story. King Solomon didn’t go through with it. Neither should Congress.

What does it mean in this context? The biggest flashpoint in the Senate hearing was the unprecedented timing of preemption in the Senate bill. For the first time in any environmental legislation, states would be blocked from taking action even in the absence of federal regulation. They would have been blocked when EPA began the review of a chemical. That process could drag on for 7 years if EPA met its deadlines under the bill. Many more if EPA blew its deadlines, as is often the case.

All three Senators opposed this policy. The California Attorney General said it created a “regulatory void” where the public can’t be protected. More colorfully, Senator Whitehouse called this mandatory no-protection period a “death zone.” But the Senators hit a brick wall in trying to get this provision removed. I’m not sure why. A consistent rumor is that the more ideological oil companies will kill any reform proposal that does not include it, that they need a concrete “get,” if they are to let even modest reform slip through. None of that is on the record anywhere, however. The auto industry loudly objected to the lack of a void in the House TSCA bill back in April, which surprised me. Perhaps they are behind this hard line on preemption.

Nevertheless, faced with the hard line, the three Senators negotiated a work-around. Under the substitute version of the bill, the preemption would begin when EPA published a document specifying the scope of its review of the chemical. States would be blocked from restricting the uses of the chemical specified in the document at that point. If EPA finds the chemical safe for all those uses – after a multi-year review – the preemption sticks. If EPA decides it is unsafe, however, the preemption is lifted while EPA considers its own regulation. Under the deadline of the bill, the void would now last 2.5 years or up to 4.5 with extensions, instead of 7. To sweeten the pot, they allowed states to pursue a waiver of the preemption during the void. EPA has 90 days to decide on the waiver, but if they don’t, the waiver is granted. But wait! The waiver itself can be challenged. But don’t worry! The 90 day thing kicks in again. And so on and so forth.

Got all that?

Therein lies the problem. This is an improvement, sure, but it is complicated and process-laden and probably won’t work when the whole point was supposed to be making it easier to regulate chemicals- not initiating a state/federal ping-pong match.

The preemption is still unprecedented. The Attorneys General for our largest states still strongly oppose it. Some of their staff have described it as legally incoherent. It has to go.

The convoluted outcome brings up a broader point: the original bill was so bad that many of us have been grading it on a curve. It has improved a bunch, to be sure. Our own critique has driven much of that improvement, and several Senators, especially the trio, deserve credit for making it better. But when you pull back you’re left with a bill that has a lot of unnecessary provisions, some harmful ones, and modest proactive reforms. It needs more work.

The House “Discussion Draft” raised the possibility of a more straightforward approach. They didn’t get the details right in the first draft, but I’m hopeful. Chairman Shimkus (R-IL) agreed to a number of critical changes in the committee hearing right there from the dais. He’s working closely with Rep. Frank Pallone (D-NJ) and Paul Tonko (D-NY), both strong public health advocates. Shimkus already showed an independence from whomever it is that is driving the preemption overreach on the Senate side in releasing the Discussion Draft. There is no “void.” If he follows through in the same manner and works with his colleagues in the spirit of that April 14th hearing, they could potentially put together a superior product to the Senate. They could also do it more easily because the underlying bill is massively less complicated.

So let’s keep working to fix both bills and keep our eyes on the prize: real progress for public health and a rational framework for industry. Congress should not tie itself in knots and remake the state-federal relationship for some unseen force.