Sidley Austin's Martella talks 'toxic confusion' over Senate's TSCA reform bill

With the Senate Environment and Public Works Committee set to mark up a chemical safety reform bill today, what is the future of the legislation and potential for final passage? During today's OnPoint, Roger Martella, an environmental attorney at Sidley Austin and the former general counsel at U.S. EPA, rebuts criticism to aspects of the reform bill, including pre-emption, and reviews standards. He also discusses how reforming the Toxic Substances Control Act could open the door for the review of other environmental laws.


Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is Roger Martella, an environmental attorney with Sidley Austin and the former general counsel at U.S. EPA. Roger, thanks for coming back on the show.

Roger Martella: Thanks, Monica. It's great to be back.

Monica Trauzzi: Roger, the Senate Environment and Public Works Committee is set to mark up on Tuesday a chemical safety reform bill. It's been widely debated, but it does seem to have some bipartisan support at this point. The argument from some, though, is that the bill is comprehensive on its face, but when it comes down to substance, it won't go as far as needed. How much of a final compromise are you anticipating heading into the markup?

Roger Martella: I think that's an unwarranted criticism, you know. In the United States, we have the strongest, most comprehensive environmental laws in the country, but this is a law that was enacted in 1976 and it's gone untouched since. It's been kind of the shaky leg of our table of a very comprehensive system in environmental laws, and so this is really critical reform. I mean, imagine driving around in a car from 1976 with leaded gas, no air bags, no seat belts, and that's what we're effectively entrusting chemical protection to in the United States. We don't want to drive this car until the engine just breaks down. We need something that reflects modern technology, all the science, all the developments, all the research of the last 40 years, and it is bipartisan. I think there's 11 Republicans, 10 Democrats that are supporting it. Of course there'll be compromise. There should be compromise, but this is, I think, the most optimistic gesture we've seen from Congress on environmental legislation in probably 25 years, and that should be encouraged.

Monica Trauzzi: Which amendments are most significant and are you watching for most closely?

Roger Martella: I think the issue that people are looking at primarily at the cutting edge are pre-emption and the setting of the standard, and I think there's two key points there. I think the pre-emption criticisms have been vastly overstated at the outset. Any environmental -- state environmental law that is in existence as of January 1st of this year that addresses a chemical from any state will not be pre-empted under the language that -- that is being proposed, and so there's no pre-emption of existing laws, and the pre-emption of future regulations is limited, only when EPA actually proposes to enact the scope for a new chemical, and even then there's waivers that states can pursue. And then on the standard itself, the standard's a vast improvement compared to the existing TSCA, much more aggressive, much more protective of human health and the environment than the current standard. It seeks to take cost-benefit analysis out of the setting of the standard and set a standard purely based on risk factors. And another updating, another modernizing of the law that's necessary, which is something that I think is critically important, it looks not only at protecting the population as a whole, but also sensitive populations like children and pregnant women and the elderly. This is a landmark development that could be used in other laws as well.

Monica Trauzzi: And you've written about this, you wrote a blog post on the subject, and it was entitled "Toxic Confusion." Do you think there's been confusion or misunderstanding about this bill overall?

Roger Martella: I think there has been. Again, I think it's beyond debate that we're looking at a tool that's, you know, 40 years old and should be, you know, indisputable that we should be modernizing it to protect Americans from chemicals, but there seems to be just a lot of concern in general with legislative reform of environmental laws of, you know, opening things up, and I think unnecessarily creating criticisms that don't actually hold up when you read the plain language. And for example, the concern that this is a setback in the standard from the existing TSCA. It's actually an advancement towards protection because it takes costs and benefits out of the equation. It's similar to the NAAQS standard where you don't consider cost and benefits in actually setting the standard. That's something I think should be encouraged in this particular context.

Monica Trauzzi: There's a lot of back-and-forth on what states can do versus what EPA does. Why is that such an important distinction and part of the discussion?

Roger Martella: All of our environmental laws are based on the system of cooperative federalism, which is a delicate balance between the federal government setting the standards and then roles for states to implement the standards, but we have to tweak that in each individual context. What the law says here is if a state has an existing regulation of a chemical, that's not going to go away so long as it was in effect before January of this year. That will always stay intact. But in the future, the law's based on a premise that all Americans deserve the same amount of environmental protection from chemicals, and so it avoids a patchwork quilt of different levels of protections based on what state you have to live in towards the Environmental Protection Agency looking at what is really necessary to protect human health and welfare and to make sure that all Americans in all 50 states are subject to a consistent standard going forward.

Monica Trauzzi: The chemical industry has lobbied very hard, heavily on the reform bill. They've been actively involved in the discussions for many years. So does the industry ultimately come out as a winner here?

Roger Martella: I think there's been a wide group of people who've been in favor of this. Obviously the chemical industry, which will be subject to the regulation and is basically asking Congress to subject it to more stringent regulation by far than it has today, sees the certainty of regulation as very important. There's a myth out there that industry doesn't want to be regulated. I don't know anyone who says we don't want to be subject to regulation; we just want to be subject to the right regulation that actually reaches good results and good benefits. But the Environmental Defense Fund, just recently there was a letter of a number of medical professionals and organizations saying that TSCA is outdated and it's not giving them the tools they need as medical professionals to protect human health and welfare and they're -- they said there's a dire -- in their words, a dire need for Congress to address these issues to give them the tools they need to address the health concerns that they see.

Monica Trauzzi: You alluded to this earlier. Do you think the TSCA reform could open the door for Congress to review other environmental laws?

Roger Martella: I'd like to believe so. It's not just TSCA that's outdated. I mean, things have changed in the last several decades. Technology has changed. We're basically -- the lawyers at EPA are being asked to effectively fix state-of-the-art Teslas but given tools from a backyard garage from the 1970s to do so. And there's been this notion that we don't have the bipartisan support to open up laws, and if we do, there's risks. I think what this bipartisan effort is showing, again, 11 Republicans, 10 Democrats, that those risks can be managed, but we can really achieve better outcomes for the Americans if we bring these ideas together. So I do hope that this, if successful, will set an example of looking at some of the other laws and modernizing them to address climate change or new water concerns and some of these newer concerns that we've seen evolve over the last several decades that the laws originally were not intended to address.

Monica Trauzzi: Those would be some very, very interesting discussions to watch. Thank you for coming on the show.

Roger Martella: Thank you, Monica.

Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.

[End of Audio]



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