Co-authored by Matthew Shudtz
Anyone who cares about the development of sound public policy has grown distraught over congressional gridlock. The House and Senate are dysfunctional to an extent not seen in modern times. Neither is able to develop bipartisan legislation to deal with a slew of urgent social problems, from immigration and the minimum wage to the strengthening of outdated health and safety laws. But the knee-jerk glee that accompanies any bipartisan action regardless of content is just as dangerous. Take, for example, the bill to "reinvigorate" the Toxic Substances Control Act (TSCA) that just passed the House by a vote of 398 to 1.
The sad truth is that we don't require enough testing on toxic chemicals before chemical manufacturers market them in this country, and public health has paid a heavy price for this omission. It's difficult to think of more than a very small handful of industrial chemicals that have proved less toxic than we originally thought; instead, the more we learn, the more dangerous the vast majority of toxic chemical mixtures prove to be. TSCA (pronounced like the opera Tosca) was written in 1976 and is overdue for an overhaul. But the House bill will not solve the acute problems caused by toxic chemicals in the environment, and could even make matters much worse. This flawed product will meet a Senate bill that is also quite weak, setting up the potential for a "race to the bottom" in conference. Industry advocates are clearly counting on this dynamic when conferees meet. And rumor has it that the White House has signaled presidential eagerness to sign a bill, eliminating that critical counterweight to a bipartisan sell-out.
The problems with the bills start at a basic level -- workload. With more than 80,000 chemicals in the marketplace and comprehensive toxicity data on fewer than 1,000 of them, EPA faces a herculean task of prioritizing review and regulating the most dangerous chemicals. The House and Senate approach these problems in different ways, neither of which is likely to end our toxic ignorance quickly. The House bill sets a minimum of 10 reviews per year; the Senate bill puts the baseline at 25 chemical assessments in five years. Even these lengthy deadlines will be meaningless without adequate funding, and the present Congress is notorious for slashing such budgets.
The compromises to achieve bipartisan support get worse from there. The House bill completely punts on the issue of new chemicals. EPA reviews hundreds of notices from chemical manufacturers every year, operating under a "safe unless proven harmful" standard of review. The agency has just 90 days to object to a new chemical going on the market. The House bill would not change this regime. The Senate bill would, but without clear requirements regarding the toxicological information a company must submit to EPA.
As we get into the wonkier aspects of the proposals, we find even more cause for concern. The bills envision a two-step process for dealing with existing chemicals: First, EPA determines if a chemical poses an "unreasonable risk;" second, EPA chooses appropriate regulatory action. Both the House and Senate bills seek to lower the barriers to EPA action in that second step, but the language that's made it through negotiations is dangerously vague and includes new requirements that may bog down the agency, resulting in continued paralysis by analysis.
States like California, Minnesota and Washington have filled the void of federal action on toxic chemicals, but their actions have frustrated the chemical industry's desire for unfettered access to every home in the country. Washington, for example, took action to ban neurotoxins like lead and cadmium from children's jewelry when the feds didn't. The House and Senate differ on how to deal with this situation, but one thing is clear: the only way the chemical industry will continue to support this reform legislation -- support that has be instrumental in getting it this far -- is if Congress handcuffs active state legislatures.
Years from now, we'll discover, as we have so many times before, that the proverbial chemical "trichlorodeath" has caused irreversible harm to our children's health. A new crop of representatives and senators will shake their heads, blaming federal civil servants for once again failing to do their jobs. If only we would remember who writes the laws and how easy it is today to settle for bad compromises written by special interests, we might be able to break this truly vicious cycle of weak law, bad enforcement, and inevitable harm to the most vulnerable.
Rena Steinzor is a professor of law at the University of Maryland Carey School of Law and a past president of the Center for Progressive Reform. Matthew Shudtz is the executive director of the Center for Progressive Reform.