TSCA “Reform”: Consensus May Again Prove Toxic

According to a story in Bloomberg BNA, a final vote on legislation to reform the nation’s chemical law—the Toxic Substances Control Act—may be imminent. The story quotes Senator James Inhofe (R-Okla.), who explained at a congressional hearing the other day, “It looks like now we’re [the U.S. Senate Environment and Public Works Committee] just a matter of hopefully hours away of having an agreement with the House.”

The legislation generally has broad support from many well-meaning members of Congress. In fact, it’s hard to find anyone who criticizes the reform (other than myself). With time growing short, I guess this may be one of the last times I can issue a warning before I can say, “I told you so.”

I hope to be wrong, but it appears that many supporters of TSCA reform are charting an all-too-familiar, ill-fated course. Like most environmental laws, TSCA reform is likely to pass by a near, if not total, majority, with most members blindly following the “consensus.” But once it’s law, they may live to regret it.

Passage of the Food Quality Protection Act (FQPA) in 1996 by the Republican-led Congress is a perfect example how members and Washington lobbyists can support a bill today, and lament the final law later.

Passed in a hurry at the end of the 104th Congress, few players seemed to understand the FQPA’s implications. Passage was driven by a genuine need to reform the existing pesticide regulations, which then applied a standard called the “Delaney clause.” This standard prohibited the addition to food of any substance that caused cancer in laboratory animals, essentially setting a “zero-risk” standard. The Delaney Clause applied to pesticides used directly or indirectly in processed food.

As science became able to detect increasingly lower levels of residues, the Delaney Clause essentially demanded that EPA ban many pesticides. Hence, for those who used and produced pesticide products—and the members of Congress who represented them—there was a sense of urgency to reform the law. At the end of the 104th Congress, Republicans were resolved to pass pesticide reform legislation to meet the needs of farmers while also claiming credit for passing environmental legislation. The result was the Food Quality Protection Act. Supported unanimously by both houses of Congress and lauded by members of agricultural states and farm interests themselves, many believed that this bill would dramatically improve pesticide approvals.

In a letter to Senator Lugar, chair of the Senate Agriculture Committee, a long list of agricultural interests urged passage of the bill on the grounds that it was needed relief from the old Delaney clause:

Last week, representatives of the Administration, industry and the environmental community reached compromise agreement on H.R. 1627, ‘The Food Quality Protection Act’ … There is virtually unanimous agreement that an overhaul of the outdated Delaney clause for pesticide residues is long overdue. … EPA recently proposed disallowing the use of five pesticides on a number of crops under the Delaney Clause, even though the agency has repeatedly stated its belief that those pesticides pose no significant health risk to consumers. By April 1997, EPA is due to determine whether to disallow up to 40 additional uses; without corrective action, farmers could lose the use of a number of safe and effective crop protection tools that keep the American food supply abundant and affordable. The compromise version of ‘The Food Quality Protection Act’ has received bipartisan praise from both the House and Senate, including Senate Agriculture Chairman Lugar, as well as from EPA Administrator Carol Browner and Vice President Albert Gore. Key Republican and Democratic leaders have stated that it is their goal to see this legislation passed and signed into law by the President this year. We urge its prompt adoption by the Committee.

Members of Congress expressed similar support for the law on the grounds that it would allow an “abundant,” “affordable,” and “safe” food supply—words used by agricultural interests in their calls for regulatory relief from the Delaney clause. Senator Lugar, chair of the Senate Agriculture Committee at the time and the bill’s Senate sponsor, noted on the floor that he was “pleased that we have a compromise bill before us that will reform the outdated Delaney clause and help ensure the continued availability of a safe, affordable and abundant food supply in our Nation. I urge my colleagues to support this important legislation.”

Democratic Senator Blanche Lincoln of Arkansas, one of the bills cosponsors, praised the legislation because it moved away from the zero-risk standard of the Delaney clause. She noted:

When debating pesticide reform, it’s easy for many to get lost in phases such as ‘zero tolerance,’ ‘negligible risk,’ and other technicalities.  However, the issue is as simple as this: we must maintain a high-quality, abundant, and safe food supply to protect our Nation’s most vulnerable population—our children.  Mr. Speaker, the Delaney clause has become outdated, and it is high-time that we replace these laws which are based on science and technology from the 1950’s which laws based on modern science.  I support H.R. 1627 which makes this reform.

On the House side, Republican Pat Roberts of Kansas, chair of the House Agriculture Committee made similar comments:

Mr. Speaker, this bill has been cosponsored by over 240 Members. This bill has made possible by recognition from all sides of the debate that the proper use of safe pesticides is a critical element in protecting public health and ensuring a safe, abundant, and affordable food supply for our American consumers. To that end, H.R. 1627 does provide wide latitude for the Environmental Protection Agency to adapt its regulatory system to meet the constantly improving scientific information that is available.  H.R. 1627 reforms the outdated Delaney clause to allow modern science, rather than arbitrary rules, to be used in evaluating pesticide risks and benefits.  Just as important, because the new standard will be narrative rather than specific, this legislation will allow the regulatory process to be adjusted as scientific risks and benefit assessments simply progress.

Such themes were echoed by numerous other members of Congress on the floor and in press releases. The emphasis was on making the standard more attainable so that farmers could continue to affordably produce crops. 

The lone voice of reason at the time was CEI’s Jonathan Tolman, who warmed members of Congress that the FQPA would not make pesticide regulations more rational, but instead would make them even more stringent. In fact, the FQPA requires that pesticide regulations have to assure “reasonable certainty of no harm.” After passage of the law, Tolman explained in a September 18, 1996, letter to the editor of The Wall Street Journal:

The problem comes in interpreting the phrase “no harm.” On their face, those words mean “zero harm,” a short step from “zero risk.” If the agency were ever forced to interpret the statute literally, it would have to set tolerances for all pesticides at zero. Given the proclivity of environmental groups to sue the EPA and advance their agendas, the chances are very good that sooner or later a judge will be deciding that very issue. And if the Food Quality Protection Act were interpreted literally, the law would tighten, just as environmental lawsuits forced the EPA to enforce the Delaney Clause ever more rigorously.

In an October 7, 1996, letter to The Wall Street Journal, Albert Meyerhoff of the Natural Resources Defense Council confirmed that Tolman was correct. Environmental activists supported the law because they knew it would in fact be more stringent than the old law.

Among bill supporters who actually understood the legislation was Lynn Goldman, then the Assistant Administrator for the EPA Office of Prevention, Pesticides, and Toxic Substances. She and her environmental allies—among them the Natural Resources Defense Council—helped make sure the law would set very stringent standards—standards far different from what the bill cosponsors thought they were setting. “Lynn Goldman had already been part of one political miracle: She had helped pass a Democratic administration’s bill intended to keep children safe from pesticides. And she had done it in a Republican Congress known for its anti-environmental legislation,” observed one reporter.

Members of Congress and the agricultural groups had indeed voted for the opposite of what they desired. In a detailed study of the new law, University of Texas Professor Frank Cross explained: “Pesticide residues in food have been overregulated and will continue to be overregulated. The FQPA may well exacerbate the overregulation.” Cross details how the law will likely lead to continued elimination of products necessary to produce an affordable food supply and how that will imperil public health. Indeed, many products have been banned and there are fewer and fewer options for addressing serious pest-related problems.

After passage of the law, the debate shifted suddenly to “implementation problems,” with lawmakers blaming EPA for not implementing the law the way they thought it would be implemented. Few would admit that implementation problems stemmed from the way the law itself was drafted. 

In an article titled “Wake-Up Call” in California Farmer (September 1996), one observer commented:

Now a dose of reality as compared to what you have read about the relaxation of regulatory pressure on pesticides as a result of the “great compromise.”  No, you may not gain peace of mind when discovering that the new standard is stricter than Delaney, at least the way EPA and FDA was interpreting it. As our article on page 16 says, Delaney was interpreted as posing a one in a million chance of additional cancer cases from all crop uses of a pesticide. The new, tougher standard—“a reasonable certainty of no harm to sensitive populations”—applies to all pesticides, not only cancer-causing ones. Our article notes one expert’s early estimate that about two-thirds of existing pesticide tolerances on the books will be affected.

As with the FQPA, many members of Congress are supporting TSCA reform because the think it can curb regulation (at least at the state level). I wish I could be so optimistic.