Daniel Rosenberg, Senior Attorney, Washington DC
American law recognizes corporations as people, but are individual cancer-causing chemicals people also? Based on how law and policy is made in Washington, it would seem so – since carcinogens enjoy representation by an army of lobbyists and scientists-for-hire before Congress, the executive branch, and in the courts. Individual cancer-causing chemicals including Formaldehyde, Styrene, Vinyl Chloride and Trichloroethylene (nicknamed “TCE”) enjoy some of the best legal, lobbying, science, and public relations representation money can buy – whether through outfits like the Formaldehyde Council, the Styrene Information Research Council, the Vinyl Chloride Health Committee and the Halogenated Solvents Industry Alliance (HSIA) or through broader policy representation by the trade associations of chemical manufacturers and users like the American Chemistry Council, (FKA Chemical Manufacturers Association) and a constellation of firms and businesses providing outside counsel, advice, consultation and representation.
Of course, it isn’t only cancer-causing chemicals that are well represented in Washington, chemicals linked to developmental delays, reproductive harm and other chronic disease and conditions – like Phthalates and toxic Flame Retardants -- also have strong advocacy teams, including the High Phthalates Panel, the North American Flame Retardant Alliance and companies like Exxon, BASF and Chemtura.
So, how did Mr. Formaldehyde and Ms. Phthalate do in the November mid-term elections? Early indicators are that they did very well, and that there will be a lot of support for the “reform” agenda being promoted by many cancer-causing chemicals and their toxic friends. Unable to wait for the new Congress, the House of Representatives immediately scheduled votes on two bills that have the strong support of carcinogens and neurotoxins. Below, we summarize ten of the legislative actions that Carcinogens, Endocrine Disruptors and other Toxic Chemicals will be pushing the next Congress to take, starting with the two that the House could not even wait until January to do.
The EPA Science Advisory Board Reform Act of 2013 (H.R.1422), would significantly weaken the content and credibility of the EPA’s independent Science Advisory Board (SAB) reviews – a textbook example of making a government program function poorly to the benefit of polluting industries and at the expense of public health and independent science. The bill will add unnecessary new burdens on the SAB, distorting its mission and altering its process with no benefit to EPA or the public.
The worst provision would mandate allowing the participation of panel members with financial conflicts of interest, as long as those conflicts are disclosed. The idea being promoted here by the bill’s supporters is that as long as the public knows that a scientist is paid by a toxic chemical (or a company that makes the chemical) to downplay evidence of harm of the chemical, to call for additional studies and delay or prevent its assessment or regulation – then it is sound public policy to help them do so. This is inconsistent with a set of nearly universally accepted scientific principles to eliminate or limit financial conflicts. EPA needs advice and review from scientists not financially conflicted by their ties to chemical companies and reliance on defending the safety of toxic chemicals for their paychecks. The bill also significantly broadens the scope of the SAB’s work and requires a potentially open-ended comment process that will add needless delay to the Board’s work. The result would be further stalling and undermining of important public health, safety, and environmental protections.
After a threatened veto from the Obama Administration, the House passed this bill on an almost entirely party-line vote on November 18th. An amendment to the bill offered by Rep. Sean Patrick Maloney (D-NY) that would prohibit people from serving on the Science Advisory Board if they represent a corporation or a trade association with a financial interest in the outcome of the Board’s decisions was defeated, also on a largely part-line vote.
The Secret Science Reform Act of 2014 (H.R. 4012) stems from the desire of toxic substances like smog and soot to avenge air pollution standards set in the mid-90s that were based in part on supposedly “secret” studies that showed the human health cost of particulate pollution. The study – known as the Harvard Six Cities Study - was not secret, but the identities and personal information of the study participants were protected – standard practice in most studies. Two decades later, toxic chemicals and polluting industries are still mythifying the original studies (which were subsequently replicated and whose results were confirmed), and trying to change EPA policy to shut down use of basic health studies to develop health and environmental policy.
The bill would effectively amend numerous environmental statutes by forbidding EPA to use certain kinds of studies in setting health standards. It would also make it impossible for EPA to use many kinds of economic and other models it routinely relies on because those models are proprietary. This marks a radical departure from longstanding practices. Its end result would be to make it much more difficult to protect the public by forcing EPA to ignore key scientific studies. The bill would deny EPA the ability to rely upon peer-reviewed medical studies that involve commitments to patient confidentiality, when the agency carries out its statutory responsibilities to safeguard public health and the environment.
Like several items on this list, the actual effect of this legislation is so broad that it has the potential to backfire on some of the industries that support it, but there is no question that Smog, Soot and other Chemicals want to get these “reforms” into law. The Obama Administration threatened a veto on this bill, which passed the House on November 19th, the day after the Science Advisory Board “reform” bill, again largely on party lines.
Both of these bills – already passed by the House in the Lame Duck session -- fully support the policy agenda of dozens if not hundreds of Carcinogens and other toxic Chemicals: to infiltrate and weaken the ability of EPA and other federal agencies, (as well as states and other countries) to assess and regulate chemicals independent of undue chemical industry influence. Toxic chemicals can look forward to a lot of support from the Republican majority in 2015. Here are just some of the other items likely see action that will please powerful “people” like Formaldehyde, Styrene, TCE, Flame Retardants, Phthalates, Hexavalent Chromium, Lead, Smog and others:
Eliminating the Report on Carcinogens – Carcinogenic chemicals hate this biennial right-to-know report – compiled by the National Toxicology Program of the National Institutes of Health (NIH) – which identifies substances and conditions that are known or probable carcinogens. To date, there are more than 200 on the list. In 2012 the Report listed Formaldehyde as a known human carcinogen and Styrene as a probable human carcinogen. Both chemicals had a hissy fit despite the strong science that supported the listings. Styrene sued the National Toxicology Program in federal court to get the listing overturned (it lost). Then Formaldehyde and Styrene – with the help of a number of poorly advised Senators – got a rider slipped into an Omnibus Appropriations bill requiring NAS panels to peer review both listings. The rider and reviews put the Report on Carcinogens under a temporary cloud – during which time the two chemicals, with the help of former House member and failed Senate candidate Denny Rehberg (R-MT), also tried (unsuccessfully) to halt funding for the report through another appropriations rider. Ultimately, this whole effort backfired when in July of 2014 the NAS released reports that strongly endorsed the listing of Formaldehyde as a known human carcinogen and Styrene as a probable human carcinogen; the scientific review panel even concluded that there was enough evidence to up-grade Styrene to a known human carcinogen.
Formaldehyde, Styrene and their friends still hold a grudge against the Report on Carcinogens, even after the National Academy of Sciences affirmed their listings. Now the chemicals are waving around a recent GAO Report – requested by House Science Committee Chair Lamar Smith and Oversight Subcommittee Chair and BFF of Styrene Paul Braun – which concludes that there is some overlap between the Report on Carcinogens and other chemical assessment programs; including EPA’s IRIS program and the chemical assessments being conducted by EPA’s TSCA program.
The GAO does not suggest that the overlap that exists is a problem, or that it means any of the programs should be eliminated; in fact it suggests that the existing overlap in the programs is “complimentary.” GAO found no evidence that the programs were duplicative, which in GAO terms is more problematic than either “overlap” or “fragmentation” (to see how GAO defines these terms, see the chart at page four and the surrounding discussion). But Formaldehyde, Styrene and their friends are likely to distort the findings of the GAO Report and argue that the Report on Carcinogens is unnecessarily duplicative with other chemical assessment programs and should therefore be eliminated.
If eliminating the Report altogether proves untenable, the Chemicals will likely look to block funding to complete the next report, impose additional layers of requirements and review that will slow and/or weaken its process, or fundamentally change the nature of the Report, as they are attempting to do with EPA’s Design for the Environment program (see below). Whatever approach they end up taking, there is no question that Cancer-causing Chemicals have the Report on Carcinogens in their sights.
Blocking the Consumer Product Safety Commission (CPSC) from restricting the use of phthalates in children’s toys – All of the Chemicals, but particularly Lead and Phthalates --were very angry back in 2008 when Congress overwhelmingly passed legislation to reform the Consumer Product Safety Commission which dramatically reduced the allowable level of lead in toys and children’s products and included a permanent ban on three specific phthalates from children’s products, and a temporary ban on three others (Europe banned the same six phthalates in children’s toys and child care products in 1999). The bans were put in place while the CPSC convened a Chronic Hazard Advisory Panel (CHAP) to review the existing science on phthalates and make further recommendations regarding the temporarily banned phthalates and other phthalates that the Panel identified as posing health concerns. Needless to say, Phthalates in particular were very unhappy with the legislation and they made sure that the best lobbyists available to Exxon (a major manufacturer of phthalates), BASF and other companies were on the case for convincing the science experts on the Chronic Hazard Advisory Panel that phthalates are safe and no further restrictions were warranted. Phthalates were so mad that they succeeded in getting Exxon’s consultant-for-hire – the Hamner Institute (formerly called the Chemical Industry Institute of Toxicology) -- an extra opportunity to brief the expert panel after the public comment period had ended! Phthalates also tried to get the final report “peer reviewed” by the Office of Management and Budget– a review that was not required in the legislation passed by Congress and which OMB is not qualified to conduct. That delayed the release of the report for at least a year – it was ultimately about three years behind schedule --but in July the final report was released.
In its final report the expert Panel recommended maintaining the existing permanent ban on three phthalates and making the interim ban on one of the three other phthalates permanent. The Panel also recommended discontinuing the interim ban on two other phthalates, but noted they both pose developmental risks, have been associated with liver and kidney toxicity, and called for further assessment by federal agencies. The Panel also called for a permanent ban on six additional phthalates in children’s toys and products and an interim ban on another phthalate. The Advisory Panel also called on FDA to consider taking action to address phthalates in food, which is a major source of exposure. The CPSC has six months from the completion of the CHAP report to take action based on the recommendations of the CHAP.
At the end of November, the CPSC staff presented its recommendations for a proposed rule to the Commission, which would largely implement the CHAP’s recommendations. The Commission held a public meeting on December 5th and is scheduled to vote on December 17th whether to propose the rule. If they agree to move forward, there will be a 75 day period for public comment – which is longer than is typically provided. But that’s not good enough for Phthalates and their friends -- they are demanding that the CPSC hold a public comment period before they even formally propose a rule – a step that Congress did not require when it established this process, and which would further delay a process that is already years behind schedule. Assuming that the CPSC votes to move forward with formally proposing a rule in response to the recommendations of the Science panel it is nearly certain that Phthalates will be working with Exxon and its other friends to try and slow or stop the CPSC from taking further action. In fact, they were already doing that in August, less than a month after the CHAP report was released. Now it will just be easier.
EPA’s assessment of “workplan” chemicals under TSCA – Recently, the EPA’s Office of Chemical Safety and Pollution Prevention began conducting risk assessments of its “workplan” chemicals, identified as priorities for assessment (and possible regulation) based on a number of factors including hazard characteristics, use in commercial and consumer products and, volume of production. One of the first completed assessments was for specific uses of trichloroethylene or TCE, a halogenated solvent infamous for having poisoned the drinking water of soldiers and their families at the Camp LeJeune naval base in North Carolina (as well as dozens of other Superfund sites). The assessment found that TCE was not safe for a few identified uses, including as a spot remover in dry-cleaning, spray fixative for arts & craft uses, and as a spray degreaser. It is linked to heart malformations in exposed fetuses, kidney toxicity including cancer, immunotoxicity, neurotoxicity, and liver toxicity including cancer. But TCE is no average chemical – it has friends in high places – and shortly after EPA completed its assessment, Senators David Vitter (R-LA), James Inhofe (R-OK) and Michael Crapo (R-IA) – all now poised to be in the majority of the Senate Environment Committee – launched an investigation of the circumstances of the promotion of the EPA career scientist who was in charge of the TCE assessment (detailed here). EPA is scheduled to conduct reviews of a number of Flame Retardants in the next year or so, and it is a fairly good bet that at least some of those chemicals – which have a well-founded reputation for polluting the environment, invading people’s homes and bodies, and misleading legislators and the public -- will be looking for support from friends in Congress to help delay, weaken or derail those assessments entirely. I would love to be wrong about this, but I don’t think that I will be. I would bet the House on it.
Eliminating or otherwise “reforming” EPA’s Design for the Environment (DfE) program – the Design for the Environment program at EPA does not impose any restrictions on Chemicals. Instead, the DfE evaluates the safety of chemicals for certain uses and then seeks to identify safer alternatives. It is basically a public service, and acceptance of the DfE recommendations is entirely voluntary; it merely provides more information to product manufacturers, consumers and the marketplace about safer chemical alternatives to unsafe chemicals. But some chemicals including Bisphenol A (linked to reproductive and developmental effects) and Flame Retardants (same) don’t like the DfE program, because it suggests that some chemicals are not as safe as others.
These chemicals succeeded in getting yet another rider inserted into an appropriations bill in the House, requiring the DfE program to assess chemical safety based on “risk” (which factors in both hazard and exposure) rather than just the hazard – it is a bit like the chemicals want to wear makeup to cover up a cold sore. The change would dramatically reduce the number of assessments conducted under the program, and fundamentally alter its purpose, undermining its usefulness for consumers. Although the rider appears not to have made it into the final Omnibus appropriations bill (still not final as of this writing) BPA and other hazardous chemicals will clearly be eager to defang, defund, or delete the DfE program next year if they can pull it off.
Cross-cutting bills designed to paralyze and prevent the government from setting health standards to protect the public – and calling it “reform” – Chemicals aren’t the only “People” in Washington who want to “reform” how EPA and other health-protective agencies do their work. – There are plenty of other People like Coal, Oil, and Smog who also want to stop government from setting health standards and restrictions on pollution. So they are all working together to tie up the government in mountains of red tape, erecting multiple hoops and hurdles that will effectively prevent any future regulation. There are several legislative pieces of “reform” currently bobbing around including the Regulatory Accountability Act and the REINS (Regulations from the Executive in Need of Scrutiny) Act.
The Regulatory Accountability Act establishes nearly insurmountable hoops and hurdles that federal agencies must clear before being allowed to finalize protections for public health and the environment. The self-styled “moderate” champions of the legislation have made no credible case for radically revising the basic foundation of administrative process, the Administrative Procedures Act. Even the staid and conservative American Bar Association was (politely) appalled by the proposal.
Even if some little–health-protection-that-could ever made it over the steep and slippery procedural mountain created by the Regulatory Accountability Act to become final, it would almost certainly meet a quick demise (about 70 days) under the REINS Act. This last-ditch insurance policy for Carcinogens and other health threats would enable either the House or Senate to unilaterally overturn any “major” public health or environmental protection enacted by a federal agency – without requiring the assent of the other legislative body or the signature of the President. And the rules can be overturned simply by the House or Senate refusing to hold a vote to retain the rule – ensuring little public accountability for overturning important public health protections.
“Reform” of the Toxic Substances Control Act (TSCA) – All of the carcinogens and their toxic friends nearly pulled off the greatest hoax in the history of environmental protection in May 2013, when their lobbyists convinced a large number of Senate Democrats – including a genuine champion of chemical reform, the late Senator Frank Lautenberg -- to support a bill that purported to fix the many problems of the troubled Toxic Substances Control Act (TSCA) but actually would have tied EPA in red tape for years (like with the broader “reform” proposals discussed above), ensured little if any assessment or regulation ever occurred, preempted states from taking action to protect their citizens, and even taken away existing EPA authority under the current weak law. Fortunately, their cynical ruse was exposed and, despite extensive efforts made on behalf of the chemicals -- including companion legislation introduced in the House -- it did not make it out of Congress. Some (but not all) of the worst elements of the introduced Senate bill were smoothed or improved, but it never reached the point of meriting support from environmental and public health groups.
Given the nature of everything else on this list that Carcinogens are trying to do to programs for assessing and regulating chemicals, policymakers should be extremely careful and cautious in reviewing proposals for reform supported by Chemicals. The Chemicals are adept at crafting innocuous-seeming language that in practice will stop assessments and regulations in their tracks – a consistent feature of all of their legislative proposals. There is some possibility that genuine negotiation and compromise on TSCA reform legislation could take place in the next Congress, but, unfortunately, it is at least equally likely that the stubborn Chemicals and their friends will insist on moving forward with legislation that most if not all health and environmental groups cannot support. That will likely backfire, like the misguided attempt to get the National Academy of Sciences to “correct” the Report on Carcinogens’ listings of formaldehyde and styrene (see above), but it doesn’t mean that they won’t try.
The Trans-Atlantic Trade and Investment Partnership (TTIP) – While Toxic Chemicals have worked hard, and largely successfully, to prevent or delay negative assessments and regulation at the federal level, they have had a harder time preventing restrictions and use disclosure requirements being enacted in various states around the country (which is why sweeping preemption of state authority is the linchpin of their TSCA reform agenda). In addition, they have had even less success in the international arena, particularly in Europe, where the EU has enacted several strong regulations of chemicals, including for industrial uses and pesticides. The Chemicals, including Carcinogens, Mutagens, Reproductive toxicants, PBTs (persistent, bioaccumulative, and toxic), and Endocrine Disruptors are desperate to find a way of slowing and disrupting the European based actions, as well as our own states, even if they may not have the ability to actually overturn those state level or European-based restrictions. Their solution to this problem is adoption of a trade agreement – The Trans-Atlantic Trade and Investment Partnership (TTIP) -- between the U.S. and EU that will impose additional layers of red tape, “review,” “coordination” and analysis of actions being considered at the state or federal level in the U.S. or in the EU as a whole or by EU-member countries. Key features of the Chemical’s trade agenda include creation of a Trans-Atlantic Regulatory Cooperation Council, a Chemical Sector Joint Cooperating Committee (“the other JCC”), and a Trans-Atlantic Scientific Advisory Committee – a new trans-Atlantic and industry-dominated super-structure that will impose new resource-draining and time consuming hurdles for the adoption of assessments or regulations of chemicals in the U.S. and Europe.
These new “oversight” bodies would constitute a new centralized bottleneck to slow or stop actions in the U.S. or the EU, wherever possible, and where lobbyists and consultants working for Chemicals can promote methods of assessing chemicals like those rejected by the National Academy of Sciences in recent reports. But just in case any states or countries do manage to establish new protections, Chemicals and other special interests are also calling for inclusion of a legal mechanism – called the Investor State Dispute Settlement (ISDS) – that will allow lawyers for Carcinogens and other health threats to challenge adopted protections in special trade-friendly tribunals, rather than our regular judicial courts system – and require governments to pay compensation for lost profits for companies claiming to be harmed by a health standard or other protective measure. A trade agreement based on these principles is the holy grail of Chemicals everywhere – it would achieve the coveted Chemical trifecta: further limiting the ability of chemicals to be assessed or regulated at the federal level in the U.S., while also helping to slow or stop action by the EU as well as individual states in the U.S. states and the member states (countries really) of the EU – essentially globalizing the existing dysfunctional U.S. federal system for assessing and regulating chemicals. Not surprisingly, it is the top priority for Carcinogens and other Chemicals.
If it seems like there is a common theme or pattern amongst these ten examples of the “reform” agenda for Carcinogens and other toxic Chemicals, there is. Obstructing independent and credible assessments and blocking protective action – by adding new and burdensome requirements to agencies, inserting Friends of Chemicals into as many decision-making and advisory roles as possible – and establishing mechanisms to easily overturn any assessment or restriction that makes it all the way through the (already barely surmountable) rulemaking gauntlet – that is the Carcinogen’s playbook in a nutshell.
This isn’t an exhaustive list of the legislative priorities of Carcinogens, but it is a good start. Some observers (not all disinterested) suggest that the election results are a sign of the publics’ desire to “get things done,” without much consideration of what those things are. But some things are better off not being done, and the things that cancer-causing chemicals want done are at the top of that list. Real people will not be helped by any of the items on the agenda for Carcinogens, but real people don’t have the benefit of millions of dollars of campaign contributions, as well as virtually bottomless resources for lobbying and consultants. When real people voted in November, they were not intending to vote for more cancer, or learning disabilities, or more secrecy about the risks from industrial chemicals that pollute our air, water, food, and land. The question for every legislator – and then for President Obama, who is likely to see some or all of these ideas land on his desk for his signature – is whether they are in Washington DC to represent Chemical People and Corporate People, or real people. Chemical People and Corporate People don’t get cancer, and they don’t have children with learning and developmental problems, and they don’t have problems getting pregnant or sustaining a pregnancy. Those things only happen to real people. Is the job of politicians in to protect Carcinogens, or protect real people?