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Suspending Reason to Pass “TSCA Reform”

The process of lawmaking is often compared to sausage making: an unpalatable job that produces a palatable result. It’s easy to agree with the first part of that analogy, but in politics, the result isn’t always pleasant.

Today, U.S. House of Representatives is scheduled to “suspend the rules” and pass its version of reform to the Toxic Substances Control Act (TSCA). This cursory approach is another example of the suspension of reason that has plagued the entire TSCA debate, the result of which remains ambiguous at best.

As I have noted, the TSCA debate has been rife with misinformation and foolhardy claims about risks posed by chemicals used in consumer products. Few members seem to have looked very deeply at the issue and considered all the angles. Instead, they insist that the law needs reform to “protect public health,” when there is no evidence of that being true.

But perhaps that’s because, in my opinion, both political parties have agendas separate from public health and safety, which is why the substance of the entire bill has largely escaped critical attention. 

First of all, politicians always have the incentive to pass laws so that they can say that they have “done something.” In this case, that something involves allegedly protecting consumers from “dangerous” chemicals. But each party has additional reasons for supporting or tolerating “TSCA reform.”

For big-government Democrats, TSCA reform gives the Environmental Protection Agency (EPA) a stronger hold on business and the economy by empowering the EPA to meddle more in industrial processes. With TSCA reform, the agency will have greater authority to demand that industry spend money to collect data and conduct studies about chemical products, even when there’s no good reason to believe it’s necessary from a public health point of view. The “reform” will grant the EPA more power to regulate as well. In my opinion, that is a dangerous game because it will hinder consumer choice and punishes innovation by needlessly removing valuable technologies from the market. The EPA should not be allowed to take such actions unless there is compelling evidence that it’s necessary to protect public health, and for this purpose the current TSCA law is more than adequate. See my study on that here.

For business-friendly Republicans, industry allies indicate that TSCA reform will help curb unwarranted regulatory activity in the states, particularly California. Both House and Senate bills include provisions that provide limited preemption of some state chemical regulations. Yet there is considerable debate about how far preemption should actually go, and it may become too watered down to make much of a difference. 

Still, it’s rational for industry to seek some sort of preemption. After all, it’s extremely difficult to innovate, grow, and meet consumer demand across 50 states with 50 different sets of laws and regulations. In fact, that’s a key reason why our constitutional Framers formed the union we now call the United States of America—so that trade and commerce could flow easily across the nation. In addition, rational people can see why industry needs to address California’s crazy chemical laws, particularly its Green Chemistry Initiative, which allows the state to meddle in industrial processes and product design without good scientific or public health justifications. You can learn more about that here, here, and here.

It’s not clear that the current proposals will do much good, and they may be worse than the status quo. Members of Congress of both parties appear to be doing more finger-crossing and hoping for the best as they advance “TSCA reform.” A couple different organizations (see here and here) representing toxicologists have expressed concerns about undefined terms in both the House and Senate TSCA bills, which no one really knows how either the EPA or courts will apply.

Meanwhile, we have a history with the current TSCA law, which has in fact worked well (again, see my study for details).

So rather than further examine or consider such realities, the House is taking a leap in the dark by considering this bill under “suspension of the rules,” a move that can only be defined as reckless. 

Historically, this parliamentary procedure was designed for non-controversial bills with relatively low estimated costs. It should be reserved for such things as naming post offices and other inconsequential things, but it has been used and abused to pass legislation with limited debate times (40 minutes) and to bar amendments. You can see the House rule on suspensions in page 28 of this document.

Helping advance passage of the House TSCA bill is the Congressional Budget Office’s (CBO) cost analysis, which claims that TSCA reform will save money. These “savings” will come because the TSCA bill would enable the EPA to levy lots of fines and fees on industry. 

The Democrats might like this, but it’s not completely clear why supposedly free-market-oriented Republicans are so willing to tolerate more government and more fees and fines on businesses. Moreover, CBO provides no data or reason to believe that regulatory costs to the economy won’t be high. Such costs will take the form of hidden taxes because prices must rise if industry has to needlessly redesign consumer products to meet arbitrary new government regulations.

There is no definitive way of estimating such costs, but CBO analysts don’t appear to mind making something up in the absence of good data. CBO’s assessment of regulatory costs is summed up in this sentence (see page 6): “Based on information from industry experts, CBO expects that the annual cost of any restriction would not be substantial.” CBO offers nothing more here than a rubber stamp and a guesstimate based on zero data. And the “industry experts” it relies on are most likely lobbyists pushing the bill! What a scam.

Once this passes, we move to the next step, which may well be passage in the Senate by “unanimous consent” or some other foolish move. Expect more shenanigans in the Conference Committee between House and Senate, and delivery to President Obama’s desk.

It’s unclear what Obama will do, but his decision will most likely be more about politics than about science and public health. After all, that’s what TSCA reform is really all about anyway, potential adverse impacts on consumers notwithstanding.