Senate approves major reform of the chemical safety law

The biggest bipartisan environmental legislation to pass the Senate in decades.

  • New Mexico Sen. Tom Udall, D, shakes hands with Oklahoma Sen. James Inhofe, R, as they arrive at a news conference on the Chemical Safety Improvement Act in May.

    Tom Williams/CQ Roll Call/AP
 

Update Dec. 18, 2015:  

The most important environmental legislation in two decades cleared the Senate Thursday evening on voice vote without any debate. The bill updates the Toxic Substances Control Act of 1976, which has failed so stupendously that public trust in the safety of chemicals has eroded such that even the chemical industry supported more regulation.

 “It was supposed to protect American families. It doesn’t. Every day, Americans go to the grocery store or the hardware store. They believe the chemicals in the products they buy have been tested and are safe. But that’s not true because TSCA is broken,” Sen. Tom Udall, D-NM, a chief architect of the bill, said at a press conference outside the Capitol earlier this fall. 

It was striking for such a major environmental bill to pass without objection during an era when Congress is so often gridlocked. Udall worked with Republicans Sen. Vitter of Louisiana and Sen. Jim Inhofe of Oklahoma to craft the bill and managed to lure even liberal Democrats to support a measure that the chemical industry also supports. The fiercest critic of the bill was another Democrat, California Sen. Barbara Boxer. She argued that the industry had too much sway in drafting the bill and opposed measures that would limit how much states could regulate toxic chemicals.

The measure now has to be reconciled with a House bill, which passed earlier this year, before it can become law.

June 8, 2015: 

Sen. Tom Udall prides himself on personally answering constituents’ questions. So the Democrat has spent a lot of time recently assuring outraged New Mexicans that his bill to overhaul the nation’s chemical safety law was not written by or at the behest of industry, as critics charge. “I can’t tell you how many times I’ve been in one-on-one conversations on the phone answering everybody’s questions,” Udall said in a recent interview in his Capitol Hill office.

The Toxic Substances Control Act, now awaiting a full Senate vote, might well become the rare piece of major legislation that makes it through one of the least-productive Congresses in history. But along the way, it’s opened an unusually ugly rift among Democrats, while creating unexpected alliances among senators who rarely agree.

Being accused of kowtowing to industry is unfamiliar territory for any Udall. Tom Udall, 67, has enjoyed a reputation as an environmental and public-health defender since he entered Congress in 1991, and even before that, as New Mexico attorney general. His father, the late Stewart Udall, built an extraordinary conservation legacy as Interior secretary for John F. Kennedy and Lyndon B. Johnson. He spent his post-government years fighting for nuclear-testing downwinders and uranium miners with lung cancer, and Tom, then a private lawyer, assisted him.

Given his history, the intensity of the recent attacks came as something of a surprise.

“I don’t think it’s useful to the process of legislating to get personal or to attack someone’s character,” Udall said. “I care about legislating on chemical safety because it’s something that’s so important to the people.”

After years of pushing a chemical safety bill that attracted zero support from Republicans or industry and never even reached the Senate floor, Udall took a gamble. Following the lead of New Jersey’s late Sen. Frank Lautenberg, D, Udall embraced a bipartisan approach to fixing the Toxic Substances Control Act. The 1976 law was supposed to give the Environmental Protection Agency authority to regulate toxic chemicals, but by directing the agency to set the “least burdensome” requirements, it created too high a burden of proof: The EPA couldn’t even regulate a proven carcinogen like asbestos.

Lautenberg died in June 2013, shortly after introducing a bill with one of the chemical industry’s biggest supporters, Louisiana Sen. David Vitter, R. Udall, a co-sponsor, took Lautenberg’s place. The bill was unpopular among Senate Democrats, because although it gave the EPA new power to regulate chemicals, it broadly limited states’ authority. Udall still thought it was better than current law and believed he could make it stronger, such as by requiring the EPA to consider health and safety but not costs when setting standards for chemicals, and to protect vulnerable populations like infants, the elderly and chemical workers.

Many people, Udall said, told him they worried about the chemicals in everything from sippy cups to sofas. But ever since the EPA lost a 1991 court case, it’s failed to regulate any of the tens of thousands of chemicals already in commerce.

Meanwhile, however, the chemical industry was rethinking its long opposition to regulation. Fears about flame retardants and compounds in plastics like bisphenol A, better known as BPA, had eroded public confidence. A few states, including California and Oregon, had begun regulating chemicals, and the industry began to think that dealing with a single federal law would be easier than coping with a patchwork of state regulations.

Udall saw this as an opportunity. But many public health and environmental activists thought he was compromising too much — betraying his principles by giving the industry what it wanted.

California Sen. Barbara Boxer, D, told reporters in March: “To be 100 percent candid and direct, their bill has been generated by the chemical industry itself.” Computer coding, Boxer said, proved the bill originated at the American Chemical Council.

Udall denies this. He said he and Vitter first wrote a draft and then asked for comment from industry groups and environmental and public health advocates, along with fellow senators, including Boxer. “I think it was an unwarranted, completely false accusation,” he said.

But national media, including The New York Times, questioned the donations Udall had received from the American Chemical Council, as well as a campaign ad the group sponsored. Those attacks got some traction, but Udall said he isn’t worried about his reputation. “They have to be true to mean anything to me. And none of them are true.”

Udall appeared undaunted, and behind the scenes, he pushed Vitter and industry to accept a number of changes. The bill the senators introduced in March was significantly stronger than the 2013 Lautenberg-Vitter bill. For instance, it introduced new fees for chemical companies and increased the number of chemicals the EPA would be required to evaluate.

But the attacks continued. Boxer convened a press conference April 21 where public health advocates trashed the bill. Deirdre Imus, co-founder of the Imus Cattle Ranch for Kids with Cancer, in New Mexico, called it an “irresponsible prescription for disaster.”

One substantive explanation for the Boxer-Udall discord is that New Mexico, a poor state, has no plans to regulate chemicals. So California has much more to lose if states’ authority to regulate toxic substances is pre-empted.

The criticism started to ebb only after April 28, when four Democrats joined all 11 Republicans on the Senate Environment and Public Works Committee to approve the bill. By then, it had moved closer toward Democrats’ goals, significantly reducing restrictions on states. It was the first time in two decades that the committee passed major environmental legislation with a bipartisan vote.

Rhode Island Sen. Sheldon White House, D, one of the Senate’s most ardent environmentalists, marveled that he and senators on the opposite end of the political spectrum supported the same bill. He credited Udall with “a signal legislative accomplishment.”

Boxer, however, said that though the original Vitter-Udall bill “was slain,” the new legislation “is still not a really good bill.”

Despite the beating he took, Udall could end up looking like an environmental statesman. His bill has at least 40 co-sponsors, and chances of a Senate vote on it look good. If chemical safety reform ends up becoming law, Udall said: “I think it will be shown that all of us who worked on it did the right thing.”