Ken Cook on Improving the Chemical Safety Improvement Act

Part of the Series

Moyers and Company

The Chemical Safety Improvement Act, co-sponsored by Senators Frank Lautenberg (D-NJ) and David Vitter (R-LA), was introduced earlier this year, shortly before Sen. Lautenberg passed away on June 5, 2013. Initially, the bill was heralded as a long overdue bipartisan effort to strengthen the 1976 Toxic Substances Control Act (TOSCA). As public health historians David Rosner and Gerald Markowitz explained on Moyers & Company recently, the existing legislation allowed the EPA to test chemicals only after there was cause to believe they were dangerous. Of 84,000 registered industrial chemicals in the United States, only about 200 have been tested.

Two environmental organizations — the Environmental Working Group (EWG) and the National Resource Defense Council — immediately opposed the bill. Many of the health protections included in Lautenberg’s original legislation, The Safe Chemicals Act — which they had supported — were missing in the Lautenberg-Vitter compromise bill. Since then, a growing number of environmental and legal groups have joined them in opposition.

Today, the Senate Committee on Environment and Public Works is holding a hearing on the bill. Ken Cook, EWG’s president, is testifying (read his testimony) before the committee. We caught up with him earlier this month to ask him about the bill.

Theresa Riley: Where are we with the Lautenberg-Vitter Chemical Safety Improvement Act? Where does it stand right now?

Ken Cook: It’s a pretty stark divide. We have one environment group where there seems to be conditional support — and that’s the Environmental Defense Fund. Everybody else in the environmental community has stated formally that they do not support it without major changes. On the other side, a large coalition of industry groups are in favor of it and Senator Vitter’s pushing very hard to move the bill on the strength of that industry backing.

Riley: But that wasn’t always the case, right? At first, many in the environmental community were somewhat enthusiastic about the bipartisan bill.

Cook: There have been some corrections. They saw the cosponsor list that had been lined up, a lot of prominent Democrats on it, and there was the expectation that anything coming from Senator Lautenberg would be good for the environment and public health. That was a central hallmark of his career as a legislator. So I think people started off with an assumption, out of hope and past track record, and then read a bill that they didn’t recognize.

This is not like the Clean Air Act [enacted in 1970] or the Clean Water Act [enacted in 1972], where you have rooms full of environmental attorneys and NGO experts and analysts who’ve lobbied it. There’ve been multiple cases brought under those statutes, usually against the agencies for failing to meet deadlines or failing to comply, so there’s a deep knowledge there that we just don’t have in our community on TOSCA. But as people read the [Lautenberg-Vitter] bill, everyone started coming to the same conclusions, and then a whole series of letters started coming out, from legal scholars, from national environmental groups, state-based coalitions. The California Environmental Protection Agency wrote a letter in which they said dozens of their environmental laws would be affected by the preemption provision. Dozens.

Riley: What does the preemption clause say?

Cook: It’s the most aggressive and expansive preemption provision we’ve ever seen proposed by industry, and I think the trial lawyers would agree. Kamala Harris, the attorney general here in California, the State Department of Toxic Substances Control, and then most recently, California’s Environmental Protection Agency all weighed in, and they basically said this thing is a nightmare for California law — and not just the chemical law. The California EPA said this could affect their ability to regulate climate change gases like CO2 under AB 32, the landmark climate change legislation that was passed here a few years back. That legislation was challenged by the Koch brothers by ballot measureto try to take it down, and was saved in the 2010 election.

Pretty much everybody who spent some time with it and knew the background started raising these rudimentary questions about how could this be? Compared to the previous legislation, the enforcement provisions were stripped. The safety standard is very weak. All kinds of cost benefit and alternatives assessments are required before EPA can ban a chemical. It just goes on and on.

And then there are very expansive provisions in there to curb the ability of individuals to pursue litigation in the form of toxic torts. So the foundation of the legal rights that led to the documents Bill Moyers used in the documentary “Trade Secrets,” for example, would be jeopardized. The American Association of Justice, formerly ATLA, has come out and said this is a disaster for civil torts. Forget state law — it also would severely curb, if not eliminate the ability of individuals to seek regress if they’ve been harmed or a community has been harmed by chemicals.

Riley: Senator Boxer was a co-sponsor of Lautenberg’s original bill. Does she support Lautenberg-Vitter?

Cook: She definitely does not. Senator Boxer has made it very clear that she’s going to look at this bill, which a number of her Democratic and Republican colleagues have signed on to, and she’s also going to look back at the many provisions that were jettisoned, that she and other Democrats had supported in previous versions of the bill.

She’ll look at how new chemicals are evaluated, she’ll look at what kinds of steps EPA will be required to take if they decide to phase out or ban a chemical — all those building blocks. The structure of the latest bill could easily be a structure for debate and for figuring out what elements should be jettisoned, changed, added, what have you. I think other Democrats are having misgivings about it too, even ones who are signed on. The Boxer hearing will be a big deal and I think it’ll be interesting to see what happens after that.

The big problem with TOSCA hasn’t been that it’s creating tremendous hurdles for industry to get chemicals approved or to introduce them into commerce, or that industry’s being persecuted by a series of regulatory actions under the law. It’s the exact opposite. Everybody knows it’s the weakest law on the books. But I think people are beginning to understand that, while it was unthinkable for a lot of folks that you could make TOSCA worse than it is, it turns out this bill does. We have a lot ofcontent on our website that explains how the bill fails to do what it needs to do, including a list of ten ways in which the new bill will make things worse than TOSCA.

Riley: For people who are concerned about chemicals, what can they do?

Cook: Follow what different groups are saying about it. The American Chemistry Council’s website is a good place to look for supporters of the industry approach. And from our standpoint, any of the environmental organizations — obviously we’re one, but also the NRDC, the Breast Cancer Fund, and the Center for Environmental Health out here in Oakland — all of us have weighed in strongly and are keeping up on this legislation.

They need to tell Congress, don’t accept another weak bill. People are fired up. We’ve had a weak bill [TOSCA] for a generation, and this is the first federal environmental law that would be passed in 17 years. To have a bill passed that is only supported by industry and not by the environmental community is just not going to happen.

The silver lining here is that the industry has savagely attacked Frank Lautenberg’s bill for eight years, his previous efforts, but never offered anything in legislative language of its own. Now we have it. We see what industry really wants, and now the debate can really begin. There are going to be some fireworks. I don’t know if there’ll be legislation in the end that moves very far, but in that sense, it’s been a service to the debate to have this bill introduced, because now we know what we’re up against, what the strategy at least initially was, what they hope to get and what their priorities are. And we’ll see how far compromise can go when David Vitter is the one who has to approve all the amendments.