Miracle on the Potomac: The New Bipartisan Law Regulating Toxics

by |May 31, 2016

With Donald Trump pushing fossil fuels, misunderstanding the Paris climate accord, but still promising to tear it up if—or as he says, “when”—he becomes president, it is easy to be pessimistic about our environmental future. Fortunately, presidential preference polling varies throughout election year, Donald’s policy views are far from fixed, and last week Congress passed the first piece of major new environmental legislation in about a quarter century. A new law regulating toxic substances won huge bipartisan congressional majorities. Its passage reminded me of the 1970s and 1980s when bipartisan super majorities enacted most of our federal environmental policy framework.

The new law is far from perfect, but it is a major improvement over the ineffectual 1976 Toxic Substances Control Act. Under that law, only five of the over 80,000 chemicals now in use have been banned or substantially restricted in use. Not much action in four decades. Under the new law, EPA must review all chemicals now in commercial use. The law also allows EPA to require manufacturers to conduct tests of the chemicals without being required to first demonstrate that the chemical causes harm. This helps place the burden of proof on the chemical industry to demonstrate a chemical’s safety. Under the new law, EPA must prioritize the twenty riskiest chemicals in use and must complete their study of any chemical under review in less than seven years. This means that the riskiest chemicals can now be regulated. In return, the chemical industry achieved their goal of federal preemption of new state toxic chemical laws. Currently many states have enacted more stringent toxic chemical rules than those enforced by the federal government. Under the new law, new state rules focused on the same chemicals under review by the feds would be preempted, although existing state laws could remain in place. The federal approach simplifies compliance with rules, since chemical companies need only comply with one rule rather than a wide variety of state regulations.

This law is a step forward, but it still does not adhere to the precautionary principle where new chemicals are tested before they are put in use. But it is significant because the chemical industry and the environmental community and legislators from both parties were able to work together and compromise. There was a time when such compromise was far from newsworthy, but in today’s hyper-partisan national government, it seems like a small miracle. It is a graphic demonstration of America’s shared belief in the importance of a safe, healthy environment. Polling has long demonstrated the wide consensus behind efforts to free our environment of toxics.

The new law is also a quiet recognition of the toxicity of the high tech environment we live in. Early in the industrial age, our homes, clothing, tools, and other artifacts were largely made of materials that were biodegradable. Our homes were clad in wood and bricks, not vinyl. Our floors were made of materials like wood and stone and were not sealed in layers of plastic for protection. Our furniture was made of wood and cloth and our clothing was made of cotton, wool, silk, fur and other organic materials. Modern computers, smartphones, and home entertainment systems are all based on plastics and electronic elements that are either toxic or non-biodegradable. Today’s materials are less expensive, more durable, and more toxic. When the process of manufacturing, using and recycling these materials is well regulated and carefully managed, they can be kept from damaging natural systems. When they are developed with haste, without rules and without care, they can cause great damage to the planet’s air, water and land. In some cases they can also harm living creatures such as human beings.

When America first attempted to regulate toxic substances in 1976, the plastic and chemical-dominated economy was only a generation old. Forty years later, the chemicals have become more complex and their use more widespread. For example, marine debris is everywhere and fish sometimes confuse plastics for food, or find they are tangled in packaging and discarded toys never meant for disposal in the ocean. Far more dangerous is the release of the poisons that the new chemical control law is designed to regulate. These chemicals can enter our food chain and cause cancer, birth defects and can affect the health of many living beings.

While the new law is a significant move in the right direction, its scale is dwarfed by the chemical industry’s ability to invent and manufacture new combinations of chemicals for new industrial uses. This bill makes it possible to remove the most dangerous of these substances from the American economy. However, since we are now in a global economy, controlling the chemicals in America does not eliminate our exposure to their impact.

I have often observed that the challenge of addressing climate change has so dominated discussions of environmental policy, that the issue of toxics and ecosystem well-being have been relegated to the sidelines of political discourse. I do not see these as competing priorities and believe they should all be integrated into a single discussion of the challenge of global environmental and economic sustainability. Nearly all the economic growth of the past two centuries has been due to the development of technology. Our way of life depends on labor saving, transportation, information and communications technologies that have had the effect of reducing poverty and enhancing quality of life. The problem is that our species is so successful at developing technology that our technologies threaten the planet that we still require for sustenance.

The use of technology in our economic life must be tempered and managed to reduce its impact on natural ecological systems. The impact of greenhouse gases on climate is one of many human-made substances changing our biosphere. Many of the other 80,000 human-made chemical products we have concocted also damage the environment. We need to get all of them under control.

My view is that an appreciation of toxics and local air and water pollution can lead to a deeper understanding of the existential threat of climate change. Since the impact of some toxics is relatively immediate and because some of these pollutants are easy to see and smell, they are difficult to deny and have the ability to teach people about the impact of technology on human health. It is then a small leap to understanding the unseen impact of greenhouse gases on global climate.

The chemical companies came to the bargaining table on toxics regulation because they saw the growing grassroots support for chemical bans at the state and local level. They know that people are more aware of what they are putting in their bodies and what they are feeding their children. The focus on wellness, exercise and diet is a mass, broad phenomenon and these companies understand that they must be willing to manage and even police the most dangerous of the chemicals they have invented. The connection of pollution to public health is what built widespread support for environmental protection here in America. We see this starting in China and in other developing nations globally.

Speaking of the threat of a nuclear contaminated planet on June 10th, 1963, President John F. Kennedy connected the natural environment to our needs as living creatures when he said that:

“…In the final analysis, our most basic common link is that we all inhabit this planet. We all breathe the same air. We all cherish our children’s future. And we are all mortal…”

We are all air breathing, mortal beings who have an ethical responsibility to preserve the planet for our children. That is the story of the toxics compromise in Congress, and I believe that if somehow the Donald becomes the deal-maker-in- chief, he too will come to think about the health of his children and grandchildren when he makes environmental decisions. If for some reason he doesn’t, the courts, the congress, and America’s states and cities will make those decisions for him.


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