A Moderate Proposal - to Destroy our System for Protecting Health and the Environment

What is a “moderate”?  Who – other than knowing and willful iconoclasts -- thinks that their own views aren’t moderate?  

U.S. Senators Susan Collins, Mark Pryor and Rob Portman, have all cultivated their political image as moderates – attempting to use it as a badge of reasonableness, and, perhaps, a shield against closer scrutiny and criticism of their ideas and policy positions.   But not carefully scrutinizing the “moderate” legislation they introduced yesterday to ostensibly “reform” the way agencies develop rules – including those to protect the public from toxic chemicals, tainted food, and all kinds of pollution would be a terrible mistake.  Because the effect of their proposal would be anything but moderate.

The legislation proposes a sweeping rewrite of the Administrative Procedure Act, which has been the cornerstone of agency rulemaking for more than 60 years, and applies to virtually every agency (there are some general exemptions in the areas of “national security” and “monetary policy”).  The crux of the bill is ostensibly to ensure that agencies select the regulatory option that is the “least costly,” and the “least burdensome,” and that any regulatory action that does not take the least costly or burdensome approach must be fully justified – by demonstrating that the marginal benefit of the more expensive approach is worth the extra costs.

How would that work in practice?   Has that approach ever been tried before?   The answer to the second question is yes, and the answer to the first question is, it failed miserably.

As I have written numerous times, the Toxic Substances Control Act (TSCA) is widely considered to be the greatest failure of any of the environmental laws of the 1970s.  The law “grandfathered” the 62,000 chemicals then available in commerce, and did not require them to be tested or to meet a safety standard.  In the 35 years since then, the EPA has only successfully required testing of roughly 300 of those 62,000 chemicals, and has partially, barely, inadequately regulated only FIVE. 

The main reason that EPA has failed to regulate chemicals under TSCA is the provision requiring the agency to select the regulatory alternative that is the “least burdensome” on industry.   In 1989, after spending TEN YEARS and MILLIONS OF DOLLARS, to develop a 45,000 page record, EPA (under George Bush the first) proposed to ban most uses of asbestos in the United States.   The science on asbestos is strong.  It is KNOWN TO CAUSE CANCER IN HUMANS (not just animals).   Roughly 10,000 people die in the U.S. EACH YEAR as a result of exposure to asbestos.  More than 50 other countries have banned its use.  Those facts don’t matter.  What matters is that in 1991 a federal court overturned EPA’s ban on existing uses of asbestos (it allowed a ban on any new uses).  The court held that EPA had not met the “least burdensome” test by conducting a thorough cost-benefit analysis of each of the potential regulatory options at the agency’s disposal, and demonstrating that the one it chose was the least costly effective approach.   As a result, products containing asbestos are still used in this country.  And, in the 20 years since the court’s decision in the asbestos case, EPA has not proposed to regulate another toxic chemical.

How broken is the TSCA program?  Don’t take my word for it.   Earlier this year, H. Fisk Johnson, the CEO of the major consumer products company SC Johnson (they make Windex, Pledge, and Glade) stated: “Your child has a better chance of becoming a major league baseball player than a chemical has of being regulated by EPA,” under TSCA.  

The legislation introduced today would make it many times harder for EPA to regulate asbestos, or any other toxic chemical, beyond the already impossible-to-meet requirements under TSCA.  Rather than just having to consider the range of regulatory options available to EPA under the statute, and complete a cost-benefit analysis of each option – the bill would require EPA (or any other agency) to consider all alternatives raised by any interested party during several periods of public comment.   The number of alternatives EPA would be required to consider could run from the dozens into the hundreds.  The time and cost of conducting such analyses would be enormous, and EPA and other federal agencies, as we all know, are having their budgets cut.

The irresistible line that these Senators – and the very long list of corporate industries and trade associations that were quick to endorse it – will be offering in support of this legislation is that it is only intended to ensure that the costs of regulations don’t outweigh the benefits, nothing more, nothing less.  In other words, the “moderates,” along with the chemical industry, the oil industry, the auto industry, the coal-fired power industry, the mining industry, the plastics industry are all primarily concerned with making sure that YOU, the taxpayer, do not have to suffer from the burden of costly regulations.  Their support for the legislation is NOT, I repeat NOT in any way intended to result in any decrease in protection for public health or the environment from exposure to toxic chemicals in household products, pollution from oil refineries or automobiles, coal-fired power plants, mining or plastics.  No. No!  That is not their intent.  Absolutely not.

The truth is; if this “moderate” bill were to become law, the work of EPA, -- protecting public health and the environment – would grind to a halt, as the TSCA program itself did 20 years ago. 

Under the proposed bill, your  child would be more likely to break Nolan Ryan’s record of no-hitters (7), and Rickey Henderson’s stolen base record (1,406), and Hank Aaron’s (untainted) home run record (755), and Mariano Rivera’s saves record (603 at the time of this post) than a chemical would have of being regulated under TSCA.

 An industry-supported stealth attack on public health and safety, the bill makes it virtually impossible to protect the environment, the food we eat, the water we drink, the air we breathe, or protect our children from exposure to toxic chemicals.  If enacted, the bill would shift power from agencies whose mission is to protect the public to powerful corporations whose interest is the bottom line, not public health and safety.  Food safety, toy safety, and other basic protections would be undermined by this cynical and unnecessary proposal.  

Here is the list of industry trade associations that had their endorsement ready to go when the “reform” bill was introduced yesterday.  If you support the idea of tying the hands of EPA and every other federal agency, so that they can’t take basic actions of fundamental importance – like protecting children and babies from exposure to toxic chemicals, you’ll want to thank those "moderate" Senators, and these industry “leaders:”

Alliance of Automobile Manufacturers

Aluminum Association

American Bakers Association

American Chemistry Council

American Farm Bureau Federation

American Forest & Paper Association

American Foundry Society

American Hotel and Lodging Association

American Machine Tool Distributors’ Association

American Petroleum Institute

Associated Builders & Contractors, Illinois Chapter

Associated Builders & Contractors, Inc.

Associated Builders & Contractors, Rocky Mountain Chapter

Associated General Contractors of America

Associated General Contractors of California

Automotive Parts Remanufacturers Association

Brick Industry Association

Business Roundtable

Colorado Roofing Association

CTIA – The Wireless Association

Edison Electric Institute

Equipment Marketing & Distribution Association

Financial Services Forum

Industrial Energy Consumers of America

Industrial Supply Association

International Sign Association

International Warehouse Logistics Association

Irrigation Association

Marine Retailers Association of America

Metals Service Center Institute

National Association of Electrical Distributors

National Association of Home Builders

National Association of Manufacturers

National Association of REALTORS®

National Association of Wholesaler-Distributors

National Black Chamber of Commerce

National Club Association

National Council of Chain Restaurants

National Electrical Contractors Association

National Federation of Independent Business

National Funeral Directors Association

National Marine Distributors Association

National Mining Association

National Newspaper Association

National Retail Federation

National Roofing Contractors Association

National Stone, Sand & Gravel Association

North American Association of Utility Distributors

North American Die Casting Association

North American Equipment Dealers Association

NPES—The Association for Suppliers of Printing, Publishing and Converting Technologies

Nuclear Energy Institute

Outdoor Power Equipment and Engine Service Association

Portland Cement Association

Property Casualty Insurers Association of America

Small Business & Entrepreneurship Council

SouthWestern Association (farm, industrial/construction and outdoor power equipment


SPI: The Plastics Industry Trade Association

U.S. Chamber of Commerce