Boxer, Californians fight parochial tag in reform battle

By Sam Pearson | 09/24/2015 07:30 AM EDT

With a key Senate hearing on a bipartisan bill to update federal chemicals policy less than two weeks away, aides to Sen. Barbara Boxer (D-Calif.) had a problem.

With a key Senate hearing on a bipartisan bill to update federal chemicals policy less than two weeks away, aides to Sen. Barbara Boxer (D-Calif.) had a problem.

Boxer’s office had first wanted to summon the California attorney general’s office, led by Kamala Harris — a Democrat running to succeed Boxer in the Senate when she retires at the end of her term — to weigh in on S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act," before the Environment and Public Works Committee.

Boxer’s aides had hoped Harris or a deputy could argue that the bill would weaken California’s ability to regulate chemicals — but then had second thoughts about inviting them, records released to E&E Daily under the California Public Records Act show.


"We only get two witnesses," wrote Bettina Poirier, the Democratic staff director and chief counsel at the EPW committee and a top aide to Boxer since 2005, in a message to California officials in March. "My boss thinks we are likely to need written testimony from [California], but need a witness from another state so this doesn’t look parochial to us."

As it happened, Harris herself wasn’t available to testify at the hearing, explained Brian Nelson, who was then general counsel at the attorney general’s office, so a lower-ranking official would be needed. As an alternative, California Secretary for Environmental Protection Matthew Rodriquez could testify instead.

With Boxer as their leading champion and the Golden State’s attorneys providing legal support, chemical safety advocates have worked to show they are a broad coalition, not a regional one, and that their opposition to the Senate legislation is based on the national interest — not just California’s. But some proponents of the pending chemicals bill — states with fewer regulations, industry groups, some environmental organizations and other lawmakers — have argued that Boxer and California leaders see little need to compromise on Toxic Substances Control Act reform because the large state can spend hefty sums forging ahead on its own policies, while other states’ citizens remain vulnerable.

Long able to effectively block unfavorable action because of Boxer’s post as chairwoman of the Environment and Public Works Committee, California has seen its influence diminish in the TSCA debate with the election of a Republican-controlled Congress — enabling lawmakers from other states to forge ahead with the legislation. Despite that, Boxer and others have won concessions during the ongoing negotiations over TSCA reform, grandfathering in existing state chemical restrictions and letting one program, the voter-approved Proposition 65 labeling rules, continue over industry opposition.

However, to state leaders’ alarm, California under the current Senate bill stands to lose its ability to set other kinds of tighter chemical restrictions in the future if they would conflict with a final agency action by U.S. EPA — something bill proponents say shouldn’t be a problem if EPA has the resources to do its job. But Boxer has signaled she is open to some form of pre-emption through her recent comments that a competing House bill, H.R. 2576, or the "TSCA Modernization Act," could be acceptable as a basis for reform.

"I have spent my life fighting for women, children and families, and I know the horrific consequences of unregulated poisons and toxins," Boxer said in a statement provided to E&E Daily this week. "My goal is to make sure the federal bill does not stop states from protecting families from cancer, heart disease, lung disease and other health problems. I want to make sure that while we give power to the federal government to act, it does not have the unintended consequence of destroying lives because states, which have been the leaders, are unable to act if they see danger to their people under the new law. I am very hopeful a balanced bill will be negotiated, but my bottom line is to protect families from tragic health consequences. I will use every tool at my disposal in this effort."

California’s priorities aside, many other lawmakers are arguing that TSCA reform is necessary because their states do not have the resources to regulate chemicals.

"The driving thing for me is that my state is not protected," Sen. Tom Udall (D-N.M.), the bill’s chief sponsor, said in an interview earlier this year. "We don’t have a state chemical law that deals with the kinds of testing that the EPA does. And so this is a big problem for my state — this is true for small states and large states — Virginia and Ohio don’t have them. … When you have an ineffective EPA on this, on these important issues, this is a big problem."

Legacy of Calif. laws

Some advocates dispute Udall’s claim that only California is protected under current law.

Rather, California laws have prompted changes to consumer products that extend across state borders, they contend. Other state laws have helped, too, like restrictions on bisphenol-A (BPA) in baby bottles, which led to federal action. In all, 35 states have approved at least 173 bills addressing chemical regulations since 2003, according to the advocacy group Safer States. Actions include Maine’s disclosure of BPA in toys, which prompted Hasbro to reformulate its products, and a 2008 Washington state law phasing out the flame retardants known as polybrominated diphenyl ethers, or PBDEs, that produced an agreement brokered by U.S. EPA to stop sales of some PBDEs at the federal level.

"Nationwide, all children benefit when one state acts," Sen. Ed Markey (D-Mass.) said at a hearing earlier this year.

Over decades, California has built up toxic chemical regulations that take more novel approaches than other states, and officials for years have beaten back attempts to weaken them, even though the programs’ supporters admit they haven’t always been implemented as planned.

Controversial since the start, Proposition 65, or the Safe Drinking Water and Toxic Enforcement Act, approved by voters in 1986, was a bid to attack "the source" of pollution, not just its consequences, Carl Pope, then the Sierra Club’s political director and an author of the initiative, told the Los Angeles Times in the final weeks before its passage.

The bill would be successful by ending "a great game of find-a-loophole," in which companies have many avenues to fight regulation of chemicals by presenting procedural obstacles, said Pope, who later became the group’s chairman and executive director.

Though most widely known for its mandated chemical warning signs, "the law’s major success in ensuring safer products has been mostly invisible," because companies are prodded to reformulate their products, the Center for Environmental Health wrote in a 2013 report. CEH settled 62 lawsuits under the statute in 2013, according to the state attorney general’s office.

Companies are pushed to make these changes because they fear the stigma of a Proposition 65 warning label, CEH and other groups contend. That’s why PepsiCo. Inc., in their telling, removed the chemical 4-methylimidazole, or 4-MEI, from its soda after using it for decades. California was required to list 4-MEI under the program because the National Toxicology Program, part of the Department of Health and Human Services, found it caused cancer in laboratory animals. But companies were not required to issue labels unless they used 4-MEI at levels exceeding the "safe harbor level" established by state regulators.

Business interests disagree. To voters, the promise of Proposition 65 "had great appeal," said Anthony Caso, a law professor at Chapman University in Orange, Calif., and a critic of the program. "We’re talking about getting warnings anytime something might cause cancer. On the face of it, that sounds great, but if you see the label on absolutely everything everywhere, it’s meaningless."

Some opponents also note that the BPA restrictions in baby bottles fell under the authority of the U.S. Food and Drug Administration, and thus wouldn’t have been affected by changes to TSCA.

This kind of "quiet compliance" is not often visible to consumers, but still benefits them, Claudia Polsky, a former deputy state attorney general who is now the director of the Environmental Law Clinic at the University of California, Berkeley, said in a recent interview.

These kind of programs are beneficial because states inevitably move faster than the federal government, Polsky said at an Environmental Law Institute forum earlier this year.

Failing to allow states to take faster action only harms consumers and companies, which must manage harmful products that have improperly entered the marketplace, Polsky said.

Restricting states in this way "was like building a hospital without an emergency room," Polsky said (E&E Daily, Jan. 28).

Still, even as California officials have repeatedly beaten back attempts by outsiders to alter state regulations, changes to Proposition 65 are not off the table within the state, though they have yet to succeed. The state’s Green Chemistry Initiative, launched under a 2008 law, has also faced criticism for playing a limited role so far in the marketplace (Greenwire, Sept. 27, 2013).

Proposition 65, too, has not lived up to all expectations, Polsky said. For example, she said, its prohibitions on discharges to water have proved difficult to enforce.

Business groups’ arguments against Proposition 65 have found some sympathy from Gov. Jerry Brown (D).

Brown, launching a push in 2013 to limit what he called the most egregious applications of Proposition 65, praised the law as a well-intentioned policy, but warned that it was "being abused by unscrupulous lawyers."

Brown’s proposal would have allowed businesses to avoid liability if they correct the problem within 14 days, pay a $500 fine and notify whoever sued them that they fixed the problem. The exemption would have applied only to exposure to vehicle exhaust in parking garages, alcohol, secondhand smoke and naturally occurring chemicals caused when food is cooked, which many experts considered the most frivolous uses of the law.

Four months later, the plan was scrapped because of stakeholder disagreement and a dwindling legislative calendar.

Can’t ‘convey in any way this is better than current law’

To hold the line against threats to California law, Boxer and her allies agreed, it was key not to adopt opponents’ arguments that existing federal law was so bad that almost anything would be an improvement, Poirier wrote in comments on draft testimony being prepared for Maryland Attorney General Brian Frosh (D). At the time, Boxer was stating that the bill "is actually worse than current law" (E&ENews PM, March 10).

The idea was to avoid rhetoric that "feeds into the idea" that federal law was so bad that "action must happen — thus any bill worth doing," Poirier wrote.

It’s "important not to convey in any way this is better than current law," Poirier wrote. "It is a package and it does not work. Saying that it is incrementally better will open flood gates of problems."

Frosh’s testimony before the EPW Committee came as staff and California officials were working to rally opposition to the bill from Udall and Sen. David Vitter (R-La.). The office of New York Attorney General Eric Schneiderman (D) reached out to states around the country, even to Udall’s home state of New Mexico ("no response," a staffer wrote), seeking to enlist attorneys general to the cause.

Attorneys general play a unique role as the frontline litigators who must actually enforce these statutes and are accountable to voters, said Andy Igrejas, director of Safer Chemicals, Healthy Families, which opposes the Senate bill. Though "some states care about this more than others," Igrejas conceded.

Numerous letters of support and opposition have since been circulated to the public and members of the media as legislative action on the bill has stalled, even as the bill’s proponents continue to add co-sponsors — 54, at last count — and seek floor time from Senate Majority Leader Mitch McConnell (R-Ky.).

"Sent AG letter to Darren goode with politico because he called about these issues," Poirier wrote. "Keep in mind he is not a friendly reporter."

The delay should not be blamed solely on Boxer, Igrejas said. It is also due to the fact that the legislation is flawed, he said, in particular the "early and bizarrely crafted" way pre-emption is handled.

Unlike in the House bill, states in the Senate legislation would have to seek a waiver from EPA if they want to restrict the use of a chemical before EPA has made a final regulatory decision, and EPA’s denial of a waiver could be challenged in court. Supporters of the bill have defended the waiver as the product of compromise that would protect the interests of states.

California’s negotiators may need to remain vigilant as the bill progresses, Boxer’s office warned last March, as floor time could bring an opening for last-minute changes that could harm the state.

"Remember, there is a long road ahead and this is just the first step," Poirier wrote. "Many will try to push for more rollbacks in the next round on the floor. If there is no worthwhile deal here, negotiations will continue, and the opponents will be under additional pressure as well."