Journal Silent on Udall’s Chemical Industry Regulation Bill

March 20th, 2015 · No Comments · Congress, environment, journalism, regulation, Washington

By Denise Tessier

Both the Santa Fe New Mexican and the New York Times this past week have weighed in with editorials about New Mexico Sen. Tom Udall’s bill that would update federal law regulating chemicals. As of this writing, the Albuquerque Journal has not.

The Journal’s Washington, D.C. correspondent, Michael Coleman, has done an excellent job informing readers about the debate Udall’s bill has attracted (“Chemical regulation legislation draws debate,” March 19) and the flak (“Udall catches flak over rewrite of chemical legislation,” March 11), but they are no stand-in for an official position that would normally be expected from the editorial board of the state’s largest daily. (Traditionally, all editorials have their genesis in news stories like Coleman’s.)

That both a local (the New Mexican) and a national paper (New York Times) would opine on the New Mexico Democrat’s bill makes the Journal’s lack of opinion regarding a local congressman on the national stage even more noticeable.

Udall’s bill was introduced in the Senate March 10, but he has worked on it for more than two years. As Coleman reported nearly two years ago, Udall took over sponsorship of the legislation after the death of Sen. Frank Lautenberg, a New Jersey Democrat, teaming up with Sen. David Vitter, a Louisiana Republican. Their goal was to revamp the Toxic Substances Control Act of 1976, which since has not been updated, and has actually been weakened in ensuing years by court ruling.

At a hearing of the full Environmental and Public Works Committee at that time, Chairman Barbara Boxer, D-Calif., expressed a desire for much more stringent regulation but Udall said he would prefer not to start from scratch, saying a compromise piece of legislation would be more likely to pass.

A compromise is what Udall and Vitter introduced this month – named the Frank R. Lautenberg Chemical Safety for the 21st Century Act – and again it was criticized by Boxer, who introduced her own competing bill, and who went so far as to tell the New York Times that it “looks like the chemical industry itself is writing (Udall’s) bill.”

The New York Times article (March 6) quoting Boxer looked in-depth at Udall’s environmental background, his need to work on this bill with officials in the $800-billion-a-year chemical industry and the reality of getting anything through Congress these days – quoting Udall as recognizing that reality:

Mr. Udall emphatically rejects the notion that he is industry’s emissary. “I am fighting for our children and trying to make sure they are not being pumped full of chemicals in the next generation,” he said. “We can’t do something that is pie in the sky; we have to deal with the reality.”

. . . The courting of Mr. Udall, even with Republicans in control of Congress, demonstrates how important securing the support of at least a few Democrats in the Senate is to any corporate agenda in Washington, where almost nothing can emerge from the chamber without 60 votes.

The New York Times’ March 18 editorial position mirrored that NYT profile, saying that while Boxer’s bill is better in terms of public safety and health, it doesn’t have a chance because it has no Republican support. (In contrast, Coleman reported that the Udall –Vitter bill has eight Democratic co-sponsors, including Democrat Martin Heinrich of New Mexico, and eight Republican co-sponsors, which Coleman called “an unusually high number in the narrowly divided Senate.”)

The New York Times editorial made these points about public safety:

The Boxer-Markey bill uses a tougher, more desirable safety standard — chemicals must show “reasonable certainty of no harm” to remain in commerce. The Udall-Vitter bill uses a lesser standard — chemicals can be regulated only if they pose “unreasonable risk” to health or the environment.

Ideally, it would be best to require “reasonable certainty of no harm,” but that language has been repeatedly introduced in reform bills dating back to 2008, without ever attracting a single Republican vote. (Emphasis added.)

The editorial then explained the benefits of the “unreasonable risk” language:

Under the Udall-Vitter bill’s “unreasonable risk” approach, the E.P.A. would no longer have to consider costs when deciding whether a substance is unduly risky as it does under current law; that judgment would be based solely on health effects. The agency would have to consider costs when deciding how to regulate a substance, but it would no longer have to prove that it picked the least burdensome approach. Professional organizations concerned with maternal and child health, such as the American Congress of Obstetricians and Gynecologists, have praised the bipartisan efforts to protect vulnerable populations.

Still, the editorial took the position that the Udall-Vitter bill “has flaws that ought to be corrected,” specifically:

. . . it would weaken the ability of states to regulate chemicals under state law. Once the E.P.A. designates a chemical as a “high priority” for assessment of dangers, the bill would block states from taking action even though E.P.A. is years away from actually doing anything about it. That is an invitation for manufacturers to try to stave off regulation indefinitely. Surely, the time to pre-empt state actions is only when the E.P.A. finally acts.

. . . Two additional improvements might garner further bipartisan support. The bill does not allow states to enforce restrictions that are identical to federal ones. It should. The more enforcement the better.

As Udall told the Journal two years ago, “Most states in the country don’t have laws in place. New Mexico has no protection now. Most smaller states are in the same position.”

For Boxer’s state of California, that is not the case. According to Huffington Post, the Udall-Vitter bill would grandfather already existing state laws. But it would affect future regulation by applying to thousands of chemicals not yet regulated by any state.

The Santa Fe New Mexican recognized this in its editorial (March 14), and gave Udall props for his work on the bill, saying:

That this bill is being introduced shows that bipartisanship can still happen, with Udall toiling behind the scenes, bringing all parties to the table and meticulously crafting a law. What compromise doesn’t often do — and it didn’t in this case — is produce either the toughest law to regulate chemicals or, on the other hand, give the chemical industry a free ride. In compromise, everyone must give.

Without new legislation, though, many states, including New Mexico, have few avenues to protect citizens from chemical damage and even fewer methods of investigating or banning them. Unlike states such as California, New Mexico doesn’t have the necessary laws; we need federal law and enforcement.

Like the New York Times, the New Mexican found things to like about Udall’s bill, especially as it affects New Mexico, and said, “His bill is the best bill that can pass.” It also pointed out ways to fix the bill:

. . . Considering the bill changes how damages are figured — to consider harm done rather than a complicated cost/benefit analysis — it’s definitely an improvement. The bill also spells out particularly vulnerable populations that need protection, including pregnant women, the elderly, children and workers who deal with chemicals. With up to $18 million in “user fees,” the chemical industry will help fund EPA oversight of chemicals. It’s progress.

The sticking point for Boxer and her supporters is that federal standards would pre-empt state law, particularly California’s tougher chemical safety laws. For states like New Mexico, where there is little state oversight, that’s hardly an issue. We have no laws to pre-empt. Rather than continue unprotected — and New Mexico is hardly alone — Congress should take up the Udall/Vitter bill so that citizens across the country have greater protection. There’s nothing to say, too, that as the legislation moves through Congress it can’t be strengthened.

With compromise, all sides must give. Udall’s work ensures that the foundation is there for solid, workable legislation that will keep people safer and better regulate dangerous chemicals. With some 1,500 chemicals finding their way into the marketplace each year — 80,000 are already here — this legislation needs to pass.

The New York Times editorial also called for this needed fix to the bill in light of those chemical numbers:

The bill also requires the E.P.A. to start reviewing a minimum of 25 chemicals within five years. That number surely is too low . . .

Udall read the Times editorial and referred to it when he addressed a hearing of the Environment and Public Works Committee (chaired by Boxer) on Wednesday, saying the committee should heed the newspaper’s  suggestions for improving the Udall-Vitter bill, saying that in 40 years “there has never been a bipartisan effort with this much potential.” Of the Times’ points, he said:

They are good suggestions; they could help build more bipartisan support. So I hope that we can work on them together.

In his March 19 story, Coleman noted that Udall also had linked to the Times editorial on twitter, reporting:

In a tweet linking to the Times editorial and aimed at the committee with jurisdiction over his bill, Udall suggested he was open to further compromise.

“EPW committee, let’s work on these issues & pass #TSCA reform,” he tweeted. “We can’t wait another 40 years to fix broken law.”

A click onto the #TSCA hashtag, however, reveals the frustration of those who support the bill introduced by Boxer and Sen. Edward Markey, D-Mass., the latter of whom explains in this questioning of an EPA official some of the shortcomings of the Udall-Vitter bill.

As some of the anti-Udall tweets on that stream reveal, Udall has put his environmental reputation on the line in trying to regulate the chemical industry. He referred to some of these “attacks” during his remarks before the EPW committee hearing Wednesday, saying:

Before I close, I do want to address something upfront and in the open.

Criticism of the substance of this legislation is legitimate from both sides; it is a compromise product.

But I urge, I urge, everyone participating in this hearing today, to reject attacks on anyone’s integrity, character and motivations. . . .

They do a serious disservice to the legislative process.

His alternative:

Instead, I urge this hearing to have a great and spirited discussion on the substance, (and) at the end of the day. . .let’s not wait another 40 years to finally move forward.

That Udall would suggest that a committee incorporate suggestions from the Time’s editorial shows the influence such newspaper pieces can have in fashioning policy.

Another theme apparent in both the Times and the New Mexican editorials is that an industry-heavy bill is all that can pass in a corporate- and Republican-controlled Congress that seeks to further weaken government agencies – like the EPA.

That reality should be deplored by editorial boards all over the United States.

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