ENVIRONMENT
03/14/2015 07:30 am ET Updated Mar 17, 2015

Industry-Supported Chemical Bill Straight From 'Merchants Of Doubt' Playbook, Critics Say

Sony Pictures Classics

Tuesday's unveiling of a bipartisan bill in Congress that would reform how the nation regulates toxic chemicals sparked fervor among environmental and public health advocates. One group said the legislation may improve public health protections, but many more warned it may prove a step backward -- notably by stymying chemical-safety efforts by states.

Critics also said they're suspicious of the chemical industry's role in drafting and garnering support for the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the proposed update to a nearly 40-year-old law that just about everyone agrees is too weak and outdated. The industry's involvement, the groups added, fits a strategic playbook used by industry to protect its profit.

That playbook -- largely written by Big Tobacco and updated and expanded by climate skeptics as well as the makers of flame retardants and other chemical products -- is the central theme of "Merchants of Doubt," a Sony Pictures Classics documentary released widely on Friday.

"The chemical industry has hijacked the narrative around protecting the environment and public health," said Ansje Miller of the nonprofit Center for Environmental Health, noting the environmental health community's widespread support for the Safe Chemicals Act when it was introduced in 2013 by the late Sen. Frank R. Lautenberg (D-N.J.) and Sen. Kirsten E. Gillibrand (D-N.Y.). "They have come in with an entirely different bill that is more about creating a system that gives a false sense of security."

Ken Cook, president of the nonprofit Environmental Working Group, referred to industry's "bag of tricks" during a press call on Wednesday. His group reported last week that the chemical industry has spent $190 million lobbying Congress over the past three years. Sen. Tom Udall (D-N.M.), who co-sponsored the bill with Sen. David Vitter (R-La.), has received campaign support from the chemical industry.

"It is possible the first environmental law that will emerge from Congress in almost a generation is one that has originated in the chemical industry -- the very industry this legislation purports to regulate," Cook said.

The American Chemistry Council, the industry's national trade group, has endorsed the bill. "Stakeholders from industry, environment, public health, civil justice and labor organizations have provided input over more than two years of negotiations, and this bill is the best and only opportunity to achieve a pragmatic, bipartisan solution to reform chemical regulation," Cal Dooley, president of the group, said in a statement.

The nonprofit Environmental Defense Fund suggested that the bill is the first viable chance to reform the Toxic Substances Control Act of 1976. Central to the improvements is a reversal of the burden of proof. The old law allows companies to use chemicals in products without first demonstrating safety. The new law would require safety tests for new chemicals before they go on the market.

"It is bipartisan legislation and you need it to be bipartisan if it's ever going to pass into law," said Richard Denison, the Environmental Defense Fund's lead senior scientist.

A separate chemical safety reform bill introduced by Sens. Barabara Boxer (D-Calif.) and Ed Markey (D-Mass.) on Thursday enjoys broader support from environmental groups. But like the original Safe Chemicals Act, it's unlikely to "get off the ground" or achieve "bipartisan support," said Denison. Both bills will be the subject of a Senate Environment and Public Works Committee hearing on Wednesday.

Denison said that he, too, is not pleased with everything in the Vitter-Udall legislation, including the aspect gaining the most criticism from opposing groups: federal pre-emption, in certain cases, of a state's authority to enact new toxic chemical regulations.

Under the Vitter-Udall bill, once the U.S. Environmental Protection Agency begins assessing a chemical deemed "high priority" due to its suspected toxicity, states are barred from imposing new restrictions on that chemical for the same uses the EPA is investigating. Existing state laws, enacted before Jan. 1, 2015, would be allowed to stand.

The danger, according to Mike Belliveau, executive director of the Environmental Health Strategies Center, is that it may take the EPA a decade or more to complete its investigation and enact any regulations. Technically, the EPA has seven years to reach a final action on a high-priority chemical that fails the safety standard. But Belliveau suggested that a "10- to 20-year waiting period for federal action is realistic," as the understaffed and underfunded agency "routinely" misses deadlines. The EPA also could add a compliance phase-in period, and may face lawsuits and other actions such as congressional riders that further impede action.

"So, under the bill, for a chemical that everyone agrees is unsafe, states can't act, even when EPA is not acting," said Belliveau. "It's the best of both worlds for the toxic chemical industry -- the bill blocks state action, while slow-walking EPA through endless delay tactics."

In a letter to Sen. Markey on Tuesday, Massachusetts Attorney General Maura Healey underscored the Vitter-Udall bill's potential for a "inexplicable regulatory vacuum for a chemical that the state and federal government have recognized as potentially high risk."

The EPA has banned just five chemicals and has required testing for only about 200 of the more than 80,000 permitted for use in the U.S. But many states, including California, Maine, Washington and New York, have found success with their own regulations in recent years.

Last week, for example, the Washington state House of Representatives passed a ban on toxic flame retardants in home furniture and children's products. The bill would also provide the state's Department of Ecology with the authority to ban additional harmful chemicals from being used as flame retardants -- future actions that may be hindered by federal pre-emption. The proposal will be heard in the state Senate on Tuesday.

Randi Abrams-Caras, of the Washington Toxics Coalition, noted that her state's progress has come despite maneuvers from the chemical industry, including a flame retardant front group called "Citizens for Fire Safety" and the industry's continued "coziness" with local trade groups that testify against state regulations.

"We could see a lot of things we've worked on to protect people completely undone," said Abrams-Caras. "I think we have a better chance here of doing the right thing."

That's why the industry is looking to Congress, said Cook of the Environmental Working Group. "They want protection from the backlash and the mistrust that their industry has engendered among consumers and legislatures in dozens of states who have enacted laws to fill in the void created by federal inaction," he said.

Denison agreed that "success at the state level" has "driven industry to the federal table." Still, he emphasized that "some level of pre-emption in the bill is politically necessary." Too much pushback, or attempts to make changes, may further weaken regulations, he said, or worse: "The whole deal could fall apart and we get nothing."

Lobbying by Dow, Du Pont and other chemical companies against tighter regulations isn't limited to Washington D.C., or even to U.S. states. Negotiations are ongoing for the Transatlantic Trade and Investment Partnership, a proposed free trade agreement between the European Union and the U.S. The Center for Environmental Health's Miller is among advocates who suggest the industry may be motivated to use a U.S. bill to water-down international law.

Last fall, French investigative filmmaker Stephane Horel released a documentary, "Endocrination," detailing what she said is an offensive by corporations to thwart regulation of hormone-disrupting chemicals. The chemical industry's influence on regulations is also the topic of other recent films, including "Toxic Hot Seat," "The Human Experiment," and now "Merchants of Doubt."

"I make an honest living," says professional magician Jamy Ian Swiss in "Merchants of Doubt," as he performs a sleight-of-hand trick. "Therefore it offends me when someone takes the skills of my honest living and uses it to twist and distort and manipulate people and their sense of reality and how the world works."

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