In 1976, the U.S. passed the Toxic Substances Control Act (TSCA), a landmark law to regulate chemicals around us to protect public health and the environment. But it has fallen far short of its aims. Today, the U.S. Environmental Protection Agency (EPA) doesn’t have enough time and authority to test the 700 new chemicals on the market every year, and, when the law passed, 62,000 chemicals already for sale were grandfathered in. In 40 years, the agency has only tested 200 older chemicals and regulated five (these include PCBs, dioxin, and some limited uses of asbestos).
Now a landmark reform of the law is expected to pass Congress and be signed by the White House. It would be the first major environmental legislation since the 1990s, and even more remarkably, a bipartisan effort. It received near unanimous support in a House vote on May 24, and a Senate vote is expected soon. With clear deadlines and new authorities for evaluating risky chemicals, the new law would make it easier for EPA to regulate many chemicals it couldn’t before, such as bisphenol-A (or BPA) found in plastics and food cans and flame retardants found in furniture. It also strengthens the agency's ability to require companies to do safety testing and harder for them to claim "trade secrets" to avoid disclosing information.
It would seem that environmental and health advocates would be celebrating. As evidence of a link between chronic disease and toxic chemicals has grown over the years, they have spent the last two decades lobbying to make the flawed legislation much stronger. But only a few are celebrating; others’ support for the bill ranges from tepid to ambivalent.
For example, Andy Igrejas, executive director of the coalition Safer Chemicals, Healthy Families, has endorsed the final version of the bill, but late last week, before several last-minute changes were negotiated, he was not even sure about doing that. A week earlier, he told Co.Exist: "We’re not for it, now. We’re urging them to fix certain things. And if they fix these things—we might be able to be okay, kind of reluctantly okay." And Kathy Attar, toxics program manager for Physicians for Social Responsibility: "I don’t know if it takes us backwards. A lot of this is going to have to be a wait-and-see process."
If this bill is a landmark environmental law, why the hesitance from these groups? It points to the compromises that are made on the slow path forward to advancing public health and passing laws and the strong influence of the chemical industry on that process.
In the advocacy community, the rancor dates to 2013, when the Environmental Defense Fund—a large national environmental nonprofit known for being more willing to work with industry than other organizations in the space—broke away from from the Safer Chemicals, Healthy Families coalition, which includes groups such as NRDC, the Consumers Union, the National Medical Association, and the Breast Cancer Fund. Both sides are fighting for the same thing. But unlike the coalition and its members’ tepid endorsement, EDF views the TSCA reform bill as an important bipartisan success that is the culmination of years of work.
"In our view, this is a very solid bill," says Richard Denison, a senior scientist with EDF. "It's an improvement over the status quo on every major count. If we had the pen, we and other in our community would have written a different bill—in fact, we did write a different bill, but that never went anywhere ... this is the best and only opportunity that we have had to get the reforms made.
An update to TSCA has been under discussion since the 1990s, but was opposed by powerful chemical and manufacturing interests. But two things started to happen that increased momentum for reform. First, more and more states began passing their own laws to ban individual chemicals, often in individual products, such as the plastic additive BPA, resulting in headaches for companies trying to comply with differing requirements. Another was that consumers, as they became more educated about toxics and sought out products that were free from known dangerous ingredients, started to lose trust in companies' ability to regulate themselves.
This was an opening to make some progress and, in 2013, the Environmental Defense Fund took it. It left the Safer Chemicals, Healthy Families coalition that had been lobbying for reform since 2009 and backed a compromise, bipartisan overhaul of the law, written by late New Jersey Democrat Sen. Frank Lautenberg and Republican Louisiana Senator David Vitter, who was in close conversations with the chemical industry’s lobbying arm.
EDF’s former partners in the coalition ended up calling that 2013 bill as a "complete disaster." Not only did that proposed legislation not make positive reforms, says Igrejas, of the Safer Chemicals coalition, but it was a "seek and destroy mission" for any part of the existing law worth saving. That bill scaled back safety standards from previous proposals, including provisions to protect vulnerable populations, and didn’t have hard deadlines for EPA to take action on evaluating chemicals, leaving too much discretion to agency officials. The groups in the coalition felt it would leave the public with even less protection, because it also blocked states from taking their own actions.
That bill never moved forward in the previous Congress because it didn't attract enough support from the left and because of Senator Lautenberg’s death, but it set the ground floor for negotiating bills in the Senate and House this time around. Today’s legislation is much stronger because it has firm deadlines for EPA and considers vulnerable populations, but the Safer Chemicals, Healthy Families coalition still views it as weak progress. It still will lead to slow evaluation of high-risk chemicals—as long as seven years, while partially limiting states that want to advance their own chemical regulations in the meantime. It also makes it easier for importers of products to avoid EPA’s scrutiny, loosening requirements that they must notify the agency when they use a new chemical.
An even bigger missed opportunity could be that it nixed funding, discussed in previous bills, for R&D for greener chemicals, says David Levine, CEO of the American Sustainable Business Council. He leads a different group, the Companies for Safer Chemicals, a coalition of toxic-free brands like Seventh Generation, that also hoped to see a stronger law passed. The bill that will reach the President's desk, he says, is a "missed opportunity" to drive innovation.
Negotiations up until the last minute over last weekend rolled back some of the limits on state authorities, but it will still hurt in states like Washington, which proactively banned chemicals like BPA and, just this year, a number of flame retardants. "We know that states are able to act more quickly and we have a robust process here," says Randi Abrams-Caras, a senior campaigner with the Washington Toxics Coalition. "It will make the work that we do in the states more difficult." The flame retardants law, passed in March, should still stay in effect, but other states may not be able to act while EPA evaluates these chemicals.
In a way this is a case study in the fraught nature of compromise. Lawmakers agree that EDF’s support is what got the reform legislation passed because it brought Democrats on board and that it is a step forward. "Anytime you have the Chamber of Commerce and you have the manufacturers and the Environmental Defense Fund all together," Republican Senator James Inhofe told the New York Times, "that gets people’s attention." And Jennifer Talhelm, a spokesperson for Senator Tom Udall, the Democratic co-author of the bill, told Co.Exist: "Frankly, if EDF had not been at the table, we would still have a broken law, and we might still be decades away from reform."
But the Safer Chemicals coalition sees EDF’s bargaining a different way: "You look pretty quickly and see that they are the outliers on this. They are entitled to their opinion. The bill is in a much better place than it was—but that  deal dialed it back so far that it has taken all this work to get it to this now ambivalent place—rather than a complete catastrophe," Igrejas says.
EDF's Denison says it’s quite unfair to argue that his group set anything back. It’s decision to support the legislation in 2013 was tactical, born after many years of no progress at all in achieving Republican support.
"The reason we lent support to this in 2013 was because it was a huge opening to try to advance legislation on a bipartisan basis, which was the only way we were going to get this passed. Had nobody stepped up and said this is a bill from which we could work—had nobody done that—it never would have gotten started," says Richard Denison at EDF. "I’m not saying that we didn’t take a risk in doing that. But there was no way that bill in 2013 was going to pass."
He adds: "Our view was that if we simply oppose, oppose, oppose there is no reason for anyone to try to get invested in moving this forward."