Legislating a toxic problem the old-fashioned way

The business of passing legislation seems almost old fashioned in Washington today. Rifts between and even within the parties have brought the machine that used to make laws to a virtual standstill.

But deep inside, a few wheels are still turning in the unlikeliest of places. If they don’t slip a cog, we could soon break a decades-long stalemate between health and environmental advocates like me and the chemical and allied industries over the Toxic Substances Control Act (TSCA), a thirty-seven-year-old dysfunctional law that was supposed to tell us which of the tens of thousands of chemicals in use are safe and protect us from those that aren’t.

A legislative compromise to reform TSCA is actually within reach for the same reason that it was possible to get things done before the system froze: Because competing interests recognize mutual advantage in finding a solution – they realize that tackling a problem is better than endlessly fighting over it, even if everyone has to cede some ground to get there and the end product is something that everyone thinks could have been better. That is the nature of legislative compromise.

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Everyone agrees that TSCA is a mess. Americans are awash in chemicals today – from air fresheners and furniture stain treatments to the stuff that keeps our shirts wrinkle-free. Most people think somebody must be making sure they’re safe. But thanks to TSCA, it’s essentially the Wild West. Meanwhile, scientists are increasingly linking certain chemical exposures to the rising incidence of everything from learning disabilities to serious chronic health problems such as infertility, diabetes, and childhood cancers. 

Besides not protecting us, the law fails to give companies information needed to make better, safer products. Diligent consumers are doing their best by reading one label at a time, and a growing list of companies including Walmart and Johnson & Johnson are working to get a few of the most risky chemicals out of the products they sell. But it’s impossible to shop our way out of the problem; with tens of thousands of chemicals in use that have never been reviewed for safety, the problem is simply too big.

Last spring, a viable answer finally began to emerge. The Chemical Safety Improvement Act (CSIA) introduced in the Senate by Louisiana Republican David Vitter and the late New Jersey Democrat Frank Lautenberg is about as bipartisan as it gets, with 12 Democratic cosponsors and 13 Republicans. And in another unusual move, this week the House is holding its own hearing on the Senate bill.

Among other things, CSIA mandates safety reviews for all chemicals already on the market, and requires that new ones be found likely to meet the safety standard before they hit the shelves. It would make it easier for EPA to require companies to test their chemicals, and ensure that their safety is judged solely by the risks they pose to our health or the environment, in contrast to the paralyzing cost-benefit analysis the current law requires.

The bill needs significant work, however, if it is to deliver the level of safety and transparency we need.  Critical needs include better protection for vulnerable populations, and ensuring EPA can get the data it needs to assess the safety of new chemicals and to prioritize those already on the market. The bill also needs concrete deadlines for agency action, and a more streamlined process for meeting them. The sweeping pre-emption of state authority needs to be significantly narrowed.

We at the Environmental Defense Fund are convinced the problems are fixable and can be addressed in a manner that ensures protection of public health while retaining bipartisan support critical to passage of the legislation. 

Many of these measures can be achieved in ways that benefit all parties.

This opening didn’t spring from nowhere; in fact it’s taken years of sustained effort by many.  But the political framework is fragile, and if it fails, it could take years to get back to this point. Said another way, if perfection becomes the enemy of the good, we’ll be looking at yet another lost opportunity in modern Washington.

Denison os a senior scientist at the Environmental Defense Fund.