Whither TSCA reform post-election?

Richard Denison, Ph.D., is a Lead Senior Scientist.

[This post is adapted from comments I gave at a recent Friday Forum hosted by the American Bar Association’s Pesticides, Chemical Regulation and Right-to-Know Committee.]

Elections change some things and don’t change others.  That is certainly true about what happened on Nov 4.

The best election recap I’ve heard came from a hairdresser I overhead when getting my hair cut last week.  She said:  “Democrats win, I have to work; Republicans win, I have to work.”

I doubt anyone would try to argue that the election was in any way about or directly relevant to the TSCA reform debate, or even any sort of more general referendum on the environment.  My view is that it wasn’t really even much about political parties and which one controls the Senate – it was more of a “throw the bums out and let some new ones have a try” election.

On the other hand, it was about broad and deep dissatisfaction of voters with the inability of Washington to get anything meaningful done.  That is relevant to the opportunity the TSCA reform issue presents to the new Congress, which is one of a handful of issues that seems to have the potential to show voters that something can get done.

There is also no question that the dynamics that have determined for some time the pace and direction of the TSCA reform debate changed significantly with the switch to Republican control of the Senate. That brings with it new political opportunities and challenges.

But what I want to talk mostly about is what HASN’T changed. 

For a long time, certainly since introduction of the Chemical Safety Improvement Act (CSIA) in May 2013, EDF has consistently said that the only way TSCA reform happens is if it’s done on a strongly bipartisan basis.  That message has not always been popular, even if on some level it’s patently obvious to just about everyone.  It was our position long before the midterm elections, and it remains our position after.  It’s why we’ve been so supportive of the effort by Senators Udall and Vitter to renegotiate CSIA.

I want to spend a few minutes saying WHY I think a staunchly bipartisan approach remains the only way forward, despite the fairly large-scale shuffling of chairs taking place on Capitol Hill right now.  Indeed it may well be more important now than it was before the elections.

Politically, a bipartisan path remains the only viable path forward.  The reality of the 60-vote requirement to pass legislation in the Senate, and the presence of a Democrat in the White House onto whose desk any legislation must land, means legislation that only has Republican support can’t become law.  Simple arithmetic, as simple as it was before the election and the switch in control of the Senate.

But that’s the least compelling reason, in my view, as to why we need TSCA reform to be bipartisan.  We need this if we are to actually solve the problems that motivated both sides (industry and environmentalists, Democrats and Republicans) to finally agree to work toward reform.

First, let’s remember that what brought the chemical industry and its allies in Congress to the negotiating table was a national crisis in confidence – both among the public and in the market – over the safety of chemicals used in consumer products and materials.

The only way TSCA reform solves that problem is if it puts in place a new system that actually restores confidence.  And that means a system that is broadly viewed as credible, effective and efficient in identifying and managing chemical risks.

Second, there will be those primed to see any bill that moves in a Congress both houses of which are controlled by Republicans as necessarily an industry bill.  The ONLY way to counter that perception is to move and pass a bill with strong bipartisan support.

So what course should TSCA reform take in the next Congress?  We have a limited window of opportunity in the next Congress to get TSCA reform done.  Here is my greatest fear as to how this could all play out if we aren’t careful.  There are all kinds of narrow political motivations for both sides to start in their far corners instead of in the center.  For example, industry and its allies in Congress could see their new or increased majorities as an opportunity to start next year by advancing legislation that is well to the right of center, pulling away from the middle ground identified by Senators Udall and Vitter in their redraft of the Chemical Safety Improvement Act that surfaced publicly a couple months ago.  They might even see that as a good negotiating strategy, to start there and then make concessions to get just enough Democratic support in the Senate to reach the 60-vote margin.

I’ll predict right now that this approach would backfire and so polarize the situation that the window of opportunity will quickly close and devolve into a partisan fight, one side trying to force through legislation and the other trying to kill it off at all costs.  That may well make getting back to the center impossible.  Not to mention that we can expect the clock will quickly run out as we enter a full-fledged presidential election season.

I’ve been at this for over a decade now.  I think most of us who have been engaged have a pretty good idea of where the center is on this issue.  I strongly believe that’s where we need to start next year if we want to have any hope of ending up there and getting this done.


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