Tom Udall tries to fix the nation's toxic chemicals law

Greens oppose the bill, though it's brokered by a champion of the environment.

 

New Mexico Sen. Tom Udall thought he was stepping into the footsteps of his father, conservation giant Stewart Udall, when he agreed to broker a bipartisan bill to fix the country’s broken toxic chemicals law. 

That bill is now gaining momentum, a rare feat in the highly partisan climate in Washington. Four Democrats joined all 11 Republicans in the Senate Environment committee this week to send the bill to the full Senate.  The bill is designed to give the U.S. Environmental Protection Agency the authority to regulate and assess the safety of toxic chemicals, such as asbestos, flame retardants and Bisphenol A, better known as BPA. It also gives industry some of what it wants, by limiting regulation of the same chemicals by states.

The legislation won a key endorsement this week from EPA administrator Gina McCarthy. She told Udall in a Senate hearing that she was “pleased” that shortcomings had been fixed. “I am encouraged that we’re moving forward with a bipartisan bill,” she said.But rather than bolstering Udall’s reputation as a champion of the environment and public health across the board, his effort has provoked attacks by some environmentalists—and even a fellow Democratic Senator.

Sen. Tom Udall in front of a dry riverbed in Las Cruces, New Mexico.
New Mexico Water Resources Research Institute

“I believe he’s gotten a very raw deal by being characterized as carrying water for the chemical industry,” said Richard Denison, senior scientist for the Environmental Defense Fund, one of the few environmental groups that support the bill. “He’s the reason the bill has gotten stronger and stronger.”

Udall’s plight reflects how emotional the battle over environmental laws has become in Washington and how difficult it is to find common ground, even when everyone agrees a problem needs fixing. The emotion surrounding this bill is particularly piqued because it concerns the failure of the government to regulate toxic chemicals that Americans, even the most vulnerable such as infants and the elderly, encounter every day.

In the 40 years since the Toxic Substances Control Act was passed, the EPA has only regulated five chemicals, and none since 1990, when it lost a court case to regulate asbestos.

To fill the void, some states, California and Oregon among them, have started regulating chemicals, but they have only managed to finish work on a handful.

Through the years, Sen. Frank Lautenberg, D-New Jersey, repeatedly offered bills to reform the toxic chemical law, but they never got a vote on the Senate floor. Just days before Lautenberg died, in June 2013, he unveiled a bipartisan bill with Sen. David Vitter, R-Louisiana, one of the chemical industry’s biggest supporters in Congress. Lautenberg’s widow and other senators are among those who asked Udall to take the lead on the bill.

In deciding to do so, Udall thought about the work his father had done after he left his post as Interior Secretary. He advocated for New Mexicans sickened by nuclear fallout and Native Americans suffering from exposures to uranium mining.

“I worked with him, and it had a real impact on me,” Udall said in response to questions from HCN. “New Mexicans in particular have a personal understanding of how substances in our environment can make you sick -- or kill.”

Udall says he’s also motivated by concerns he hears from constituents who worry about the chemicals they’re exposed to in everyday life. 

“People are genuinely concerned about the tens of thousands of chemicals -- in our furniture, baby bottles, clothes, and other everyday products -- that aren't being tested,” he said. “We don't know the impact they have on our health, or with each other, or with medicines we take.”

Many longtime Udall supporters don’t question his motivations, but the senator has taken some low blows in recent months.

Sen. Barbara Boxer, D-California, has been the Udall-Vitter bill’s biggest opponent. “To be 100 percent candid and direct, their bill has been generated by the chemical industry itself,” Boxer said in a March news conference.

She charged that computer coding showed the bill originated at the American Chemical Council, an allegation Udall and the trade group have denied. Media stories, including one in the New York Times, highlighted donations Udall had received from the trade group.

True, the American Chemical Council donated $13,500, a relatively large amount, but the group gave other lawmakers far more and the League of Conservation Voters gave Udall five times that much, according to the Center for Responsive Politics.

Udall commented on these personal attacks during a hearing on the bill in March. “They do not concern me because they are absurd and unfounded,” he said “But they do a serious disservice to the legislative process.”

He told HCN he took offense at suggestions that he was doing the chemical industry’s bidding as a result of some campaign donations, especially since he has long worked for campaign finance reform.

“It's insulting to think that anyone would believe that I would put all of that aside for a few thousand dollars,” Udall said.

The New Mexico sentaor is the first to admit there are flaws in the bill, but says the “perfect” bill that Lautenberg pushed for many years couldn’t pass.

Officially called the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the latest bill would:

  • Mandate that the EPA consider only risk and not costs to industry when assessing chemicals.
  • Require the EPA to review the safety of at least 25 chemicals in the first five years and sets deadlines for action.
  • Create new fees for the industry to help pay for the EPA to assess chemicals.

A big reason Republicans and the chemical industry are willing to support the bill is that it blocks states from regulating chemicals while the federal EPA is doing so. Also, once the EPA decides a chemical is safe, that would preempt state action.

Three Senate Democrats -- Oregon’s Jeff Merkley, Rhode Island’s Sheldon Whitehouse, New Jersey’s Cory Booker -- agreed to support the bill this week, after they negotiated some changes that make the bill more flexible to state action and more protective of public health. For example, state would be able to seek a waiver to regulate a chemical even if the EPA is examining it.

Those changes didn’t go far enough to satisfy many environmental groups.

“We believe Senator Udall has been a longtime environmental leader,” Tiernan Sittenfeld, a lobbyist for the League of Conservation Voters, told HCN. “While we are not able to support this bill in its current form, we appreciate that he has made improvements to the bill.”

A companion bill is moving through the House, with a vote expected in committee later this month. It is not clear when either full chamber will vote on the legislation.

Whether Udall’s commitment to this bill, despite the compromises he had to make with industry, will shine or tarnish his environmental credentials depends on whom you ask.

Udall is working to protect public health and is willing to negotiate “with interests quite disparate to his own,” the EDF’s Denison said. “He knows this is the only way to get this done.”

Elizabeth Shogren is HCN's Washington, DC-based correspondent.