How Lautenberg and Vitter found common ground on TSCA reform

This story was updated at 9:12 a.m.

They say compromise legislation leaves nobody happy. And that's pretty much true about the surprise chemical management bill released yesterday by near-opposite Sens. Frank Lautenberg (D-N.J.) and David Vitter (R-La.).

The "Chemical Safety Improvement Act of 2013" would overhaul the 1976 Toxic Substances Control Act (TSCA) for the first time in its history, a long-sought goal of environmental and public health advocates.

There's already grumbling from some TSCA reform advocates who say the bill pales next to the "Safe Chemicals Act" that Lautenberg introduced last month. But Richard Denison, senior scientist with the Environmental Defense Fund and veteran of the TSCA wars, found reason to cheer the compromise.

"I've worked for a number of years trying to improve a statute and a program that is hamstrung at every turn by that statute," Denison said. "My reference point is whether this bill improves EPA's ability to work relative to current TSCA. And there's no question that it does.


"If one measures it against an ideal, the kind of bill I'd write if I were king, then this doesn't meet all the criteria," he added. "But this bill has a higher likelihood of passing."

Likewise, Cal Dooley, president of the American Chemistry Council, told E&E Daily that the "constructive, balanced proposal" wasn't perfect but was a step up from the industry's perspective.

"You have to look at this in its totality," Dooley said. "It's no secret that our industry was motivated to secure reform because we were seeing an increasing decline in the public's confidence in EPA's assessment of chemicals and ensuring they were safe in the marketplace. What we think we've done is achieve a process where industry is providing more information, but also continue to bring new innovations and new products to the market."

Some reform advocates who admired Lautenberg's "Safe Chemicals Act" see the compromise as a step back.

"If someone had told me eight years ago that this is what we were fighting for, I would have said 'no way,'" said Ken Cook, president of the Environmental Working Group. "If this is the new starting point, we can't support this bill."

The compromise bill scales back safety standards from the Lautenberg legislation, fails to give U.S. EPA firm deadlines or enough funding to review potentially harmful chemicals and doesn't do enough to protect children and other at-risk populations, Cook said. The provisions, he added, "make sense for the chemical industry, not kids."

Cook's concerns raise questions about whether the bill can attract support from the left. The bill lost 20 original Democratic co-sponsors from the "Safe Chemicals Act," although the compromise does have 14 bipartisan co-sponsors.

"This has changed a lot and most people did not have a lot of notice," said Andy Igrejas of the Safer Chemicals, Healthy Families coalition. "A lot of our coalition members are still reviewing the details, but the top line is that I give it credit for being an improvement over the status quo. ... When you look at that list of co-sponsors, it's got to be strange for them to be lined up together, but I think more will be talking about it."

Meeting at the '50-yard line'

The announced compromise legislation surprised many groups, because Vitter and Lautenberg had been said to be working on competing bills for the last several months.

Lautenberg's bill is a rehash of one that passed the Environment and Public Works Committee last year but stalled on the Senate floor, while Vitter's was said to have been written with help from the American Chemistry Council.

As recently as last week, the two were said to be odds over issues like the Vitter-led Republican boycott of the environment panel's vote of Gina McCarthy's nomination to head the EPA.

But a Lautenberg aide said that once Vitter's office reached out and encouraged Lautenberg's staff to review draft legislation, they realized the two measures contained core areas of overlap. Through negotiations over several weeks, the scope of Lautenberg’s bill was narrowed to focus on areas of agreement, bringing the two sides together.

"If it's a football field, we were on our 35-yard line and they were on their 35-yard line," the aide said. "We had to bridge the gap, and we came down at the 50-yard line. The reason it was able to happen was that two politically opposite members agreed on areas of TSCA that needed to be fixed."

Among the issues of agreement: EPA needed more authority to review existing chemicals, new chemicals needed to be tested before they reached market and the government needed more authority to restrict chemicals found to be harmful.

The new bill would free EPA to do more regulation, evaluating all chemicals on the market as either a "high" or "low" priority based on risk to the environment and population.

High-priority chemicals would require further safety evaluations, but they could be subject to EPA enforcement action including labeling requirements or a full phaseout.

Agreement on those areas brought the two sides close together, and negotiations continued. EPW Committee Republicans even tweeted out a picture taken Tuesday of the two senators discussing the bill together.

Drafts were circulated to stakeholders just a few days ago -- Denison said he was contacted about it Sunday -- and many legislators said they had only seen language Monday evening, potentially accounting for the lack of overlapping co-sponsors.

Sen. Richard Blumenthal (D-Conn.), a co-sponsor on Lautenberg's original bill but not on the new one, said he would "probably" sign on but that he had not finished his review. And Sens. Maria Cantwell (D-Wash.) and Jeff Merkley (D-Ore.) both said that they had not had a chance to look at the latest draft but that if it lined up with Lautenberg's bill they would support it.

The bill does have the support of seven members of the EPW panel: four Republicans and three Democrats. Still absent, however, is Chairwoman Barbara Boxer (D-Calif.), who said Tuesday she had not finished reading the bill.

But even without Boxer's initial support, backers say the bill is an achievement and likely has a path for passage.

"This is a diverse set of co-sponsors, and these were just the ones we recruited in a short window of time," said ACC's Dooley, whose group represents large chemical manufacturers like Dow Chemical Co. and DuPont Co. "It certainly creates the opportunity for rapid consideration of this bill in the Senate."

Areas of concern

But both sides agree that once the initial shock of the agreement has worn off, there will be areas that need to be evaluated.

On the left, there is concern the bill walked back some EPA enforcement power to mandate more action by companies.

Lautenberg's bill, for example, included firm deadlines for certain reviews that are absent in the new bill. Denison said that reinserting those deadlines would clear up complaints from both sides that EPA isn't making decisions "in a timely manner."

"It seems that both the industry and the environmental community have an interest in a system that's efficient. We all came to the table because EPA wasn't making those decisions and there was no referee out there," Denison said. "We've waited too long for any decisions, so we certainly want to see those deadlines."

Igrejas said the bill also walks back language in Lautenberg's bill that would have required EPA to develop action plans for "hot spot" communities that were particularly at risk from toxic chemicals. Those communities, often low-income or minority areas, need more specialized attention, supporters said.

The Environmental Justice and Health Alliance for Chemical Policy Reform said in a statement that its members were "deeply disappointed that those most harmed by failed chemical regulations and those who have worked tirelessly to support industrial chemical protections for all people will themselves be left inadequately protected under the Chemical Safety Improvement Act."

Supporters also want to see more clarity on what science EPA should use to evaluate chemicals, particularly for children's health. Lautenberg's bill spelled out that EPA would have to follow guidelines from the National Academy of Sciences and pediatrics groups, while this bill simply encourages EPA to use "best available science."

The bill, Igrejas said, "effectively kicks to EPA" some authority that was legislated under the previous bill, which could lead to confusion or weakening of some enforcement.

From the industry's perspective, however, there needed to be prioritization of innovation and trade protection. Giving up too much information to EPA on new chemicals, for example, could mean that information was available to competitors. ACC didn't endorse Lautenberg's previous bill and had expressed concern that it did not offer enough business protection.

"We recognize that EPA needed to be more transparent in how they were making determinations and their safety assessments and for industry to be committed to providing the appropriate data," Dooley said. "The end result allows us the certainty to bring products to market."

But, Dooley added, his group was still doing a comprehensive evaluation and there were still modifications that could be made.

The measure would step up enforcement of "confidential business information" exemptions by requiring businesses to justify them and EPA to review the claims, making it more difficult for companies to make CBI claims.

In the end, however, there was widespread agreement from both sides of the issue that what matters is that the process is started and eventually gets finished.

"Compromise is tough, and lots of us will be unhappy," Denison said. "But I'm of the view that something without bipartisan support was going nowhere. You have to consider what's politically feasible, and it's clear nothing else was going to move."

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