Groups struggle to communicate on TSCA reform — especially when many voters think it’s already happened

By Sam Pearson | 04/24/2015 07:23 AM EDT

Opposing a bipartisan chemical safety bill backed by powerful industry groups in a Republican-controlled Congress is no small order.

Opposing a bipartisan chemical safety bill backed by powerful industry groups in a Republican-controlled Congress is no small order.

But the scrappy Environmental Working Group has made defeating the legislation one of its top priorities and is striving to get its message out against formidable foes — and, just as important, amid public apathy.

The group’s founder, Ken Cook, said in a recent visit to the group’s three-story headquarters at Washington, D.C.’s U Street Corridor — which features framed copies of chemical industry documents released in toxic tort litigation and bisphenol-A-free metal cups — that it can be frustrating trying to gain traction in the chemical safety debate.


EWG seldom worked on the federal chemicals law, the Toxic Substances Control Act of 1976, before the group became involved in a campaign to pressure DuPont Co. to reformulate its Teflon product in 2002. DuPont agreed to change Teflon’s formula after internal company documents produced during litigation brought on behalf of a group of Parkersburg, W.Va., residents living near DuPont’s Teflon plant showed the company knew as early as 1984 that a contaminant — known as perfluorooctanoic acid, PFOA or C8 — was entering area drinking water. In 2005, the company settled with U.S. EPA and agreed to pay a $10.25 million administrative fine — at the time, the largest civil administrative penalty ever obtained under any environmental law.

Today, these once-secret documents on the office walls are a souvenir of EWG’s past policy wins, a reminder for the group’s staffers as they work against the chemical industry’s top legislative priority of what they say is the industry’s duplicitousness.

Despite the Teflon win, environmental groups have not always been so engaged on the issue of managing toxic chemicals, Cook said, and he worries it may put advocates at a disadvantage.

"This is not an issue that has occupied a lot of mind space in the environmental community," Cook said of the debate in Congress over a bipartisan chemical safety bill backed by Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) and a version by Sens. Barbara Boxer (D-Calif.) and Ed Markey (D-Mass.) that lacks the support of Republicans. "We don’t have a huge number of experts."

Congress is debating what could be the single biggest change to federal environmental law in decades, which poses a special challenge for advocacy groups — how to make sometimes dense chemical issues tangible to the public, and how to show that a potentially far-reaching change to federal law is worth paying attention to in a Congress where symbolic actions are sometimes the only ones taken.

EWG spent about $1.7 million on its toxics and human health campaign in 2013, the most recent year available in disclosure forms required to be filed with the Internal Revenue Service — a small fraction of the $111 million in revenue the industry-backed American Chemistry Council took in during that time.

Changing the nation’s chemicals law in a way that does not sufficiently protect the public health, Cook said, has "far more potential impact than, say, I think Keystone would have on public health and the environment … but it’s not something that we’ve gotten warmed up to yet like we have that pipeline, which we also oppose."

One problem is that most Americans don’t know that industry groups, environment and public health advocates, and lawmakers of both parties think the Toxic Substances Control Act doesn’t work. In fact, lawmakers are working on a problem most people think was already fixed.

"It’s almost so bad that people just don’t believe it," said Jack Pratt, the chemicals campaign director at the Environmental Defense Fund.

EDF, which supports Udall and Vitter’s bill, S. 697, or the "Frank Lautenberg Chemical Safety for the 21st Century Act," commissioned a poll this year that found 75 percent of Americans think the government already requires safety reviews of chemicals before they are allowed in stores. That means advocates of changing the law must first explain that the status quo isn’t a good option, Pratt said.

Another group, Safer Chemicals, Healthy Families, found in a 2010 poll it commissioned that broad majorities of the public favored tougher restrictions on chemicals, with the results crossing political parties. The poll conducted by the Mellman Group, a Democratic firm, found that 73 percent of respondents thought that toxic chemicals posed a "serious" or "very serious" threat, and the figure rose to 78 percent when respondents were asked about the threat toxic chemicals pose to children.

The poll also found that environmental health organizations were viewed more credibly among the public than the chemicals industry. According to the survey, 57 percent viewed environmental organizations favorably, and 59 percent viewed U.S. EPA favorably. In comparison, the poll found that 45 percent of respondents viewed chemical companies unfavorably.

Boxer has sought to play up the credibility of environmental health organizations and cast the chemical industry as an unreliable, self-interested party.

Boxer’s office has worked aggressively to paint the bill as authored primarily by the chemical industry — citing the "properties" field of a Microsoft Word document that she said listed the American Chemistry Council as the document’s author — and thus of suspect origins. The industry’s heavy spending on federal lobbying is also reason for concern, Boxer has said. (Though Boxer’s office obtained the opinion of Senate technology staff that the document was created by a user with the American Chemistry Council, Microsoft Office allows anyone to change a file’s properties, including its listed author, and Udall’s office and the ACC have denied that the trade group wrote the bill — just that it weighs in like any other interest group.)

Boxer said at a hearing last month that if you asked the average American, "Who do you believe more, politicians or the Breast Cancer Fund, I think you know the answer."

American Chemistry Council spokeswoman Anne Kolton declined to discuss the group’s advocacy approach.

‘Out of sight, out of mind’

"These don’t tend to be environmental problems that people see," said David Konisky, an associate professor of public policy at Georgetown University. "It’s not a matter of it being in their air, they don’t always taste them in their water. They’re just sort of out of sight, out of mind, for the most part."

Many Americans have a persistent faith in technological progress and trust that the government would take what can seem like obvious steps to prevent unsafe chemicals from entering the marketplace, said Charles Margulis, the media director at the Center for Environmental Health. After all, that’s what other federal agencies try to do with prescription drugs, sunscreens, and meat and dairy products, to name a few.

People often become concerned about specific chemicals when they learn about pollutants that directly affect them, like if contamination was found near where they live or if a family member is affected by an illness or infertility that could be linked to chemical exposures, Margulis said.

"Americans are optimistic," Magulis said. "They believe in progress and that things are getting better. You know, the reality when it comes to chemical exposures is things aren’t really getting better."

After TSCA was enacted in 1976, it quickly became apparent that the law was toothless, and that made chemical advocacy unattractive to many environmental organizations, Cook said. Its limitations became clear when EPA lost the 1991 Corrosion Proof Fittings case when a judge found the agency had not met its legal obligations under TSCA to ban asbestos, a cancer-causing mineral.

At congressional hearings, disagreements often center on hypothetical legal scenarios, disputes over how many chemicals should be reviewed and how states’ legal authorities would be impacted, which can be hard to boil down to bumper sticker phrases or catchy advocacy email alerts.

One advocacy group, Safer States, has been posting "translations" of letters from state attorneys general, putting their legal arguments in a conversational tone. It distilled Massachusetts’ letter of opposition down to "States rock at chemical policy: let them rock steady."

Many legal observers disagree over whether language in each of the bills would be analyzed in the same way that the Corrosion Proof Fittings precedent has tilted EPA’s burden of proof in favor of industry, or if a new law would be interpreted in a different light.

"Bipartisan agreement on an important issue isn’t a sexy issue to talk about in the media," Jennifer Talhelm, a spokeswoman for Udall, said in an email. "It’s very easy for people to make extreme attacks that get attention — it’s much harder to explain the reality and the substance behind how Senator Udall’s bill would help protect families."

Cook says he worries that if Congress passes an inadequate TSCA fix, the public will stop paying attention again.

"A setback on TSCA will be a huge setback for the entire environmental movement," Cook said. "I don’t think it’s dawned on people yet that this could be a real black eye and set a really bad precedent for the environmental community if this thing gets away from us. We’ve got to fight it, and we will."