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When Gridlock Is Good: The Case Of The Toxic Substances Control Act

When it comes to traffic, gridlock is never good. And in politics, it's a big problem when lawmakers can't agree on a plan to rescue the economy from tumbling off a “fiscal cliff.” But there are times when gridlock is a good.

In fact, gridlock promises to be the best solution to a heated debate concerning legislation to reform the federal law dealing with chemicals -- the Toxic Substances Control Act (TSCA).

TSCA reform appeared possible for 2013 before the election because most of the players -- environmentalists, industry, Republicans, and Democrats -- were calling for “TSCA modernization.” The prospect for compromise has dimmed post-election, however, with greens holding firm to their position and industry unwilling to walk the plank and accept a host of new regulations.

This is good news for anyone who understands the risks involved with opening TSCA. The law, as it now stands, has one of the most robust, risk- and science-based standards on the books. The greens hate the TSCA standard because it holds regulators accountable, allowing bureaucrats to regulate only when they can demonstrate that a product poses a real risk. It also prevents the Environmental Protection Agency (EPA) from imposing regulations that promise to do more harm than good and includes cost-benefit analysis.

Modernization will likely undermine this reasonable standard and eventually harm consumer freedom, innovation, and wealth generation as EPA passes more needless regulations and chemical bans -- forcing companies to engage in expensive product reformulations or abandon them altogether.

In fact, lawmakers are using the standard found in the nation’s pesticide law -- the Food Quality Protection Act (FQPA) -- as a model for TSCA reform. This standard demands that EPA only approve pesticides that pose “reasonable certainty of no harm.” While this standard may sound reasonable, “no harm” implies zero risk -- which is impossible to ensure. As a result, EPA has been able to remove myriad products from the market even though they pose negligible risks.

Under this approach, we lose the benefits of these products without gaining any public health benefits. As a result, there are now fewer and fewer products available to control deadly diseases like the West Nile virus as well as pests that threaten our food supply. This is a terrible model for TSCA reform.

Of course, the chemical industry wants something different. It appears that their ultimate goal is to preempt state laws with a stronger federal chemical law. After all, it’s difficult to do business when you have to comply with 50 different sets of regulations. Perhaps they also hope that by cutting a deal with the greens in Washington, D.C., they might reduce unfounded fear-mongering about their products and instill some consumer confidence.

But this is a naïve strategy. The environmental activists driving the TSCA reform debate advocate expanded government chemical regulation at all levels. Their coalition website SaferChemicals.org leads the effort to expand EPA powers, while the SaferStates.org coalition coordinates the push for stronger state chemical laws.

Meanwhile, California is moving forward with implementation of its massive new chemical regulatory law: the Green Chemistry Initiative. There is little hope that Congress would even try to preempt that regulatory monstrosity or any other state chemical law.

State chemical regulations and green scare-mongering will continue with or without TSCA reform. If federal reforms do pass, a stronger TSCA would give activists more opportunities to gain news headlines by demonizing chemical products as EPA bureaucrats implement the law by issuing “chemicals of concern” lists, ramping up regulatory reviews, and eventually imposing needless bans. This makes gridlock look pretty good in comparison.

The other possibility is for Congress to pass "piecemeal" reforms to the law. Hence, rather than overhaul TSCA, industry groups will fight for "modest" reforms to mitigate ongoing EPA regulatory efforts or to reduce incentives for states to pass their own laws. Yet this too is a dangerous strategy because greens are unlikely to sign off on anything that benefits business.

Business groups would be wiser to oppose TSCA reform, defend their products, and focus on regulatory reforms to improve government science and risk assessment. Such regulatory reform might suffer from government gridlock as well, but if these proposals succeeded, they most likely would do more good than harm. That’s much more than we can say for TSCA reform.

For more information on chemical policy, see SafeChemicalPolicy.org.

Image credit: Lel4nd on flickr