Regulatory Developments

TSCA Reform: "Tom Udall's Unlikely Alliance With the Chemical Industry" New York Times (March 6, 2015)

March 6, 2015
New York Times (March 6, 2015)" data-title="TSCA Reform: "Tom Udall's Unlikely Alliance With the Chemical Industry" New York Times (March 6, 2015)">

Headlines in The New York Times (NYT) describing a cozy relationship between a liberal Democratic Senator from New Mexico and the chemical industry is not a common occurrence. In this case, understanding the coverage reveals the story of an even more sordid and murky world of political infighting, nasty and cutting comments between Senators of the same party, and nuanced comments by interest groups that have to calibrate how much and who to support or how intensely to critique the Senators in question.

This dust-up concerns amendments to the Toxic Substances Control Act (TSCA). First enacted in 1976, the statute is long overdue for overhaul as it is widely considered to be woefully unsuccessful in controlling exposures to chemical substances currently in use in the United States. This characterization is somewhat unfair and certainly debatable, but the NYT article describes some of the backroom rancor over the debate of how to best amend the statute to enhance the U.S. Environmental Protection Agency's (EPA) powers to test and control chemicals, especially older compounds that were essentially grandfathered as acceptable in the original 1976 statute. In one corner is Senator Barbara Boxer (D-CA), who, as past Chair of the Senate Environment and Public Works (EPW) Committee, had functional veto authority over what could move through the Committee to even be considered by the full Senate. Now in the minority, she no longer wields this power, and the NYT article appears to be part of an effort to derail what a fellow Democrat, Senator Tom Udall (NM), hopes to introduce as a compromise proposal to modernize TSCA.

Further background includes the fact that the chemical industry, the Obama Administration, and most interest groups have voiced in varying ways support for certain "principles" about how TSCA should be amended since 2009. Not surprisingly, agreement to any detailed amendments has been elusive, even with the past shepherding of the late Senator Frank Lautenberg, also a liberal Democrat, who viewed TSCA reform literally as the last part of his legacy capping a long Senate career.

The current NYT article portrays not only a conflict between Senators Boxer and Udall, but provides a description of the debate that appears biased towards presenting Senator Boxer's view of the expected Udall-led compromise with Republicans. Senator Boxer apparently views Senator Udall's attempt at reasonable compromise as woefully inadequate, or as she is quoted in the article: "To me it looks like the chemical industry itself is writing this bill."

At this time of not trying to evaluate the merits of the arguments by any Senator or the contents of a bill that has not been seen by the general public, the interesting element here is how the NYT is unsubtle in its support of Senator Boxer's attempt to define the debate even before any final version of the legislative compromise has been released. And, as usual, the media coverage of some of the technical details is poorly described or misstated (example: "Asbestos... is still illegal to manufacture or sell. But because of ...[TSCA]... the agency has been unable to ban its use." How something that is illegal to sell or use is not the same as banned is not explained.)

The NYT article has made a choice to focus mostly on Senator Boxer's point of view. It does, of course, include some comments by Senator Udall in response to some of the remarks, as well as other interest groups, including the chemical industry and environmental groups trying to sound supportive without taking sides if they can avoid doing so. An approach that might have been more interesting as part of a focus on the disagreement is what now appears to be rules of engagement within the party cloakrooms, which may be inching closer to the current nasty rancor that has characterized relationships across party lines.

Of particular note in this regard are some past reported comments by Senator Boxer about Senator Lautenberg when he attempted to push an earlier version of a compromise bill in 2013. Shortly after Senator Lautenberg's death, the Capitol Hill publication Roll Call ran an article on the then Lautenberg bill stating that "multiple sources" reported that Senator Boxer and her staff "have approached other senators and aides about Lautenberg's state of mind when he signed off on the bill." So for some, an attempt at compromise legislation is perhaps a sign of ill health. If this is how the Senate currently defines civil discourse, even within the same party caucus, the prospects for the world's greatest deliberative body have dimmed considerably.


 
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