Trust in Government: A Bad Strategy for the Chemical Industry

There is a reason why people laugh when you say: “Trust me, I come from the government.” Governments are not particularly trustworthy because bureaucracies are not particularly efficient, and when they are efficient, there’s sometimes more reason to fear than trust.

Yet for the past several years, the chemical industry has been trusting the idea that giving more power to feds will save them from a growing patchwork of nonsensical state regulations. Pardon me for being skeptical.

To that end, the chemical industry is pushing legislation (S. 697 and H.R. 2576) to reform the federal Toxic Substances Control Act (TSCA), versions of which have passed both houses of Congress and are now subject to conference committee negotiations. Their best possible result would be a federal law that preempted state regulations for chemicals already regulated by the U.S. Environmental Protection Agency. 

In exchange for preemption, industry was willing to support TSCA reforms that would give the EPA more power to both collect data from chemical companies and to issue regulations based on that data. These reforms would also eliminate the current TSCA requirement that calls on EPA to impose only the “least burdensome” approaches when it does regulate, a provision that has prevented EPA from passing wrongheaded and scientifically unsound policies in the past.

As the bill moved through both the U.S. House of Representatives and the Senate, such preemption provisions have been watered down. And now as House and Senate negotiators hash out the details in conference, the issue remains contentious, and it’s possible that the final few teeth related to preemption provisions may well be pulled.

But rather than admit defeat, change course, or remove support, industry would rather rationalize a bad position. Now some industry representatives appear to be hanging hope on the idea that giving EPA more power, will increase confidence in government and cause state regulators to back off. For example, as Kelly Franklin reports in Chemical Week, Michael Heltzer, a representative of BASF, explained at a recent chemical industry conference:

The last thing, I think, they [state regulators] want to be doing is devoting dollars to state chemical regulation programmes if they don’t have to do it, and, hopefully, under a modernised TSCA they will feel less pressure to do that … They want to have a modern TSCA; they want to have that greater safety net; they want to make sure that the federal system is more deadline-driven, systematic, more efficient.

Yet Maureen Gorsen, who was once in charge of the California Department of Toxic Substances Control (DTSC), disagrees. Gorsen, now with the law firm Alston & Bird, maintained that TSCA reform will have little effect on state regulations. At the conference, and quoted in Chemical Week, Gorsen explained: “TSCA reform is not going to have too much of an impact on the state agencies …Most of what [state agencies are] doing is asking you for information, and disclosure, and changing labels.”

In addition, state policies that simply list chemicals on priority lists, rather than regulate them, create enough market pressure to force products off the market, something that will likely continue with or without federal preemption. “[T]he pressures to deselect those chemicals will be very high,” Gorsen noted.

If industry is really serious about building confidence in their products, they might start by defending the products rather than placing faith in government. After all, why would anyone trust the chemical industry when they seem to place more trust in the government than they do in their own products.