Perplexing longtime allies, son of legendary environmentalist defends negotiations with chemicals industry

By Sam Pearson | 04/28/2015 07:19 AM EDT

Staffers at Sen. Tom Udall’s office are still unpacking boxes from a recent move from the senator’s old digs just steps from the offices of Sen. Barbara Boxer (D-Calif.), and it’s not the only way the two lawmakers have drifted apart this year. Udall’s embrace of bipartisan chemical safety legislation, which he co-sponsored with Sen. David Vitter (R-La.), has brought criticism from Boxer and other opponents, and has bewildered some of his traditional supporters, who count on him to uphold a long-standing family legacy of environmentalism.

Staffers at Sen. Tom Udall’s office are still unpacking boxes from a recent move from the senator’s old digs just steps from the offices of Sen. Barbara Boxer (D-Calif.), and it’s not the only way the two lawmakers have drifted apart this year.

Udall’s embrace of bipartisan chemical safety legislation, S. 697, or the "Frank R. Lautenberg Chemical Safety for the 21st Century Act," which he co-sponsored with Sen. David Vitter (R-La.), has brought criticism from Boxer and other opponents, and has bewildered some of his traditional supporters, who count on him to uphold a long-standing family legacy of environmentalism.

Udall, for one, says he’s just picking up where the late Sen. Frank Lautenberg (D-N.J.) left off by trying to get Congress to change how the federal government regulates toxic chemicals.


But the way he’s doing it has brought the New Mexico Democrat criticism from once-friendly sources, who have warned that provisions in the bill to update the Toxic Substances Control Act of 1976 would bar states from helping the federal government enforce federal chemical laws, create a gap in enforcement that would preclude new state restrictions on chemicals before the federal government has taken a final action, and take too long to review the most dangerous chemicals, among other concerns.

Some of these issues are slated to be addressed today at a markup of the bill before the Senate Environment and Public Works Committee, where lawmakers are expected to unveil a new version of the bill (see related story) that will be the first sign of how far lawmakers are willing to go to quell concerns over the proposal, which has drawn strong opposition from Boxer, Sen. Ed Markey (D-Mass.) and others. At a press conference last week, Boxer said she thought the proposal would be "worse than current law" (E&E Daily, April 22).

A supporter of past legislation, the "Safe Chemicals Act," introduced from 2005 through 2013 and opposed by the chemical industry, Udall has been accused of letting the American Chemistry Council author his compromise bill.

Udall has been a regular guest on MSNBC over the years for his support, popular among liberals, for eliminating the use of the filibuster to stall legislation in the Senate. But the network, in a rare cable news segment on chemicals policy on "The Rachel Maddow Show" last month, mocked Udall for accepting campaign contributions from the industry group, which ran advertisements on his behalf in 2013.

"Oops, we left the lobbyist’s signature on the bill," Maddow joked.

Udall is adamant that criticism of his motivations is misplaced. He says his office has reams of paper containing different versions of the legislation, which have been circulated and shared with all stakeholders.

"This is the most transparent, open process on a big piece of legislation that I’ve ever seen," Udall told E&E Daily in a recent interview.

Like no other lawmaker, Udall, 66, faces pressure to maintain a strong environmental record. The son of former Interior Secretary Stewart Udall, who presided over high-profile conservation milestones during the Kennedy and Johnson administrations, Udall faces expectations he will channel the same environmental idealism that shaped important policy battles of an earlier generation.

Conservation is "in the Udall DNA," he likes to say.

But Udall’s presence as the lead Democrat negotiating with the chemical industry and Republicans in a bid to reform the nation’s chemical policy in a GOP-controlled Congress has scrambled some of the usual political coalitions.

Udall says it shouldn’t come as a surprise that he’s seeking to build a bipartisan consensus. He says he wishes some of the groups that oppose his bill — specifically, the Environmental Working Group — would talk to him before working to scuttle his legislation. (EWG Vice President for Government Affairs Scott Faber said that "Sen. Udall is well aware that EWG believes the Udall-Vitter bill is worse than current law and that EWG has provided testimony, legal analysis and other supporting documents to make very clear there are substantial flaws with the Udall-Vitter bill, and to make it equally clear what’s needed to ensure everyday products are safe.")

"If you look at every big environmental law that’s been passed — and my father was there at the birth of many of these laws; he would lay the groundwork for many of these laws — you have to have everybody at the table," Udall said. "That doesn’t mean that everybody gets what they want, and it doesn’t mean that everybody trusts each other, but by getting them at the table, many times you then open up a window of opportunity to get something done."

Many advocates, in effect, wish Udall had played hardball with the chemical industry.

"By making clear he would stick with Sen. Vitter whether or not the bill was improved, he’s basically enabled the chemical industry to take a more aggressive approach and try to fix fewer of those things," said Andy Igrejas, director of Safer Chemicals, Healthy Families. "The result is a bill that’s weaker than it needs to be, and we still feel like it’s not worth supporting."

Igrejas added, "I don’t doubt that the senator would prefer a more improved bill — the problem is, he’s enabling a bad bill."

‘Camelot in New Mexico’

Udall was born in Tucson, Ariz., but grew up in New Mexico and in the Washington, D.C., region, where the Udall family lived while his father served as a member of Congress and later as Interior secretary.

After earning bachelor’s degrees from both Arizona’s Prescott College and Cambridge University’s Downing College, Udall went back to New Mexico and graduated with a law degree from the University of New Mexico in 1977. Udall went on to serve as a law clerk to a federal judge, as an assistant U.S. attorney, and as chief counsel to New Mexico’s Department of Health and Environment.

Tom Udall (right) and his father, former Interior Secretary Stewart Udall, in Santa Fe, N.M., on the day in November 1998 when the younger Udall was elected to the House of Representatives. | Photo by Michael Pahos, courtesy of AP Images.

Udall’s father lived in New Mexico for 40 years before his death in 2010 at the age of 90, which left "a huge impact on New Mexico," former Gov. Bill Richardson (D) said.

Despite his name recognition, Udall’s first stab at running for Congress ended with a fourth-place finish in the Democratic primary for New Mexico’s newly created 3rd District. Voters sent Richardson — who went on to become governor, secretary of Energy, a U.N. ambassador and a presidential candidate — to Congress instead.

The setback did not deter Udall, who lost a second congressional race in 1988 before being elected New Mexico’s attorney general in 1990. He served in that position until winning election to the House in 1998, and then won the race in 2008 to replace retiring Sen. Pete Domenici (R-N.M.).

Even in a tough year for Democrats last fall, which saw Udall’s cousin, former Colorado Sen. Mark Udall (D), vanquished by a GOP challenger, Udall won re-election with 55 percent of the vote, defeating former state Republican Chairman Allen Weh.

While serving as attorney general, Udall pushed to enforce state environmental laws on illegal dumping, protecting New Mexico’s rivers and suing the federal government to prevent the improper transport of nuclear waste from the Los Alamos National Laboratory to the Waste Isolation Pilot Plant, a waste depository near Carlsbad, N.M. Udall’s office also issued the first legal opinion that held that the New Mexico Constitution provided the New Mexico State Engineer with the authority to protect instream flows for recreation or to protect fish and wildlife. He also worked to protect public land from a then-nascent movement to return federal holdings to the state, which environmental groups feared would lead to decreased protections for wildlife and vegetation.

"It was Camelot in New Mexico with him as attorney general," said Fred Nathan, a former special counsel to Udall and the director of Think New Mexico, a Santa Fe-based advocacy group.

In Congress, Udall has worked on issues like pushing for a national renewable electricity standard and advocating for legislation to expand the scope of a 1990 law, the Radiation Exposure Compensation Act, to make eligible more individuals who were exposed to radiation from uranium mining or aboveground nuclear testing (E&E Daily, Feb. 6).

Udall and other lawmakers from New Mexico and six other states have tried for years to expand the scope of the radiation law beyond an initial set of counties in Utah, Colorado and Arizona, where people exposed to radiation during the mid-20th century are eligible to seek compensation.

"There was always a sense of justice that was passed down from my father on that front," Udall said.

‘You may not get everything you want’

Udall grew frustrated with the American Chemistry Council’s top official when he wouldn’t take a position on changes to TSCA in late 2011.

At the 2011 hearing, Udall told American Chemistry Council President Cal Dooley — a former Democratic colleague of his in the House — that health studies showed harmful chemicals were accumulating in Americans’ blood and suggested the chemical industry’s objections were standing in the way of reform.

Dooley bristled at the charge.

"I take offense when anyone would even insinuate that our industry is supporting an increase in the body burden of chemicals," Dooley shot back (E&E Daily, Nov. 30, 2011).

With Lautenberg’s death in 2013, Udall became the chairman of the Environment and Public Works Committee’s Subcommittee on Superfund, Toxics and Environmental Health, a position he held until he lost his seat on the EPW committee at the end of the 113th Congress. Republicans have since renamed the panel the Subcommittee on Superfund, Waste Management and Regulatory Oversight.

A few months later, the ACC’s ad buy "left some New Mexico viewers scratching their heads," The New Mexican newspaper reported, because his Republican challenger had not yet entered the race. Since the ads didn’t air within 30 days of a primary or 60 days of a general election and didn’t call for the election or defeat of a candidate, ACC wasn’t required to disclose the spending with the Federal Election Commission.

Unlike some other lawmakers who have backed chemical industry priorities, Udall does not represent a major chemical-producing state. According to ACC statistics, chemical production in New Mexico is a $507 million industry and is the third-largest manufacturing industry in state, supporting 1,300 direct jobs and 2,050 related jobs. Still, New Mexico’s production pales in comparison to heavyweight states like Louisiana, which Vitter represents, or Texas.

Udall credits the ACC for working with lawmakers to update TSCA since then. He said getting the trade group to engage on the issue should be seen as a win for the chemical safety movement, even though the Environmental Defense Fund is so far the only major environmental group to support a proposal that has the ACC’s blessing.

"What we wanted him to do is, send us in your changes you want — we’ll work with you on those," Udall said, referring to Dooley. "You may not get everything you want … but it’ll help improve upon our bill, and it may mean that we’ll get additional co-sponsors; it may mean that we get bipartisanship."

Nathan said Udall should be commended for not simply grandstanding and accomplishing nothing. Still, Udall’s position was "an eyebrow raiser" in New Mexico, said Joe Monaghan, an Albuquerque-based political commentator.

"I’m not sure if he’s running again" in 2020, Monaghan said. "This chemical bill, the heat he’s taking from the environmental base, makes you wonder if he feels this may be his final term and he has room to get his name on the bill that he obviously believes in."

‘Of course, we don’t agree with him on every issue’

Advocates of Udall’s bill say the fact that the chemicals industry came to the table proves that the lawmaker’s tactics worked. But others say the industry’s role in the negotiations sets a dangerous precedent of allowing companies to decide how they will be regulated.

Reaction among some of Udall’s environmental supporters ranges from confusion to a sense of betrayal over the outlines of the chemical plan. Some advocates say they trust Udall to stand up for public lands, water and wildlife issues in New Mexico, but find his chemicals stance baffling.

Richard Moore of the Southwest Network for Environmental and Economic Justice and the Albuquerque-based Los Jardines Institute said he has counted on Udall’s staff to assist the group with efforts to protect communities from chemical facilities operating in an unsafe manner.

As the bill was nearing introduction, Moore said, Udall policy adviser Jonathan Black contacted him to say, "You’re not going to be happy, but we tried."

Moore said some other environmental groups may hesitate to weigh in on the bill because "if you ever ask the senator to do something again, he’s never going to do it."

In the environmental justice community, though, some aren’t shy about saying what they think of Udall’s actions, Moore said.

"His father would not necessarily be so happy about this, and that’s a little bit what’s said in the community," Moore said. "Those comments are very clearly made in the community."

Four members of the Sierra Club’s Rio Grande Chapter declined to comment on the group’s relationship with Udall, instead releasing a statement through the group’s national office.

"Senator Udall has proven time and time again that he is an outspoken advocate for clean air, clean water and climate action," Rio Grande Chapter Director Camilla Feibelman said in the statement. "Of course, we don’t agree with him on every issue, every time, but we’re eager to continue working side-by-side with him to protect New Mexico’s families and communities."

Todd Schulke, a senior staff member and co-founder of the Center for Biological Diversity, who lives in Pinos Altos, N.M., said he knows Udall will stand up to protect forests and endangered species, and to fight Republicans who try to insert appropriations riders that would harm those priorities. But the environmental community doesn’t quite know why Udall is pushing for the chemicals bill, Schulke said, though he wants to think it’s for the right reasons.

"I think it’s jarring for everybody," Schulke said. "It’s kind of inexplicable, and I’m sure he’s got a good explanation for what he’s doing."

Some of these groups may be willing to give Udall the benefit of the doubt, since he’s so important to their agenda, Richardson said, and the move could benefit Udall if it shows he can spur action.

"Tom has broad support in the environmental community," the former governor said. "He’ll be able to keep the environmentalists happy with him regardless of what happens to the bill, because he’s invested so much over the years. He’s got a strong legacy and a strong record, and I think most people in the environmental community will see him as getting something done."