TSCA Reform Likely to Be a Lower Priority in 2011

TSCA Reform:

Chemical and Engineering News reports that representatives from several major US trade associations have stated publicly that they don’t expect modernization of the federal Toxic Substances Control Act (TSCA) to be a high priority for Congress in early 2011. Their statements are not surprising.  With fears of a double-dip recession still lingering, passage of a substantially revised TSCA seems unlikely in 2011, but with continued industry support, an improved economy, and a little bipartisan cooperation, it might occur in 2012.  (Assuming, of course, that the election doesn’t get in the way.  A big “if.”)

The Republican party controls the House of Representatives and it’s clearly stated its intentions.  Among other things, Republicans are determined to reduce the impacts on the deficit, national debt, and jobs that are associated with government regulation, including some forms of environmental regulation.  Adopting a more robust chemical control statute would likely require a substantial increase in EPA’s budget and it could have a significant ripple effect throughout the economy as downstream companies that don’t manufacture, but “process,” chemicals faced new requirements.  Also, at least some chemical manufacturers would need to generate expensive new health and environmental data.  And finally, there’s the risk that a new program could stifle innovation and affect the global competitiveness of the United States.

Notwithstanding support for reform coming from the American Chemistry Council (ACC), a trade association comprised primarily of chemical manufacturers, economic concerns – real or stated – could prove dissuasive in 2011 to a majority of Republicans in the House.  The Democratically-controlled Senate may be more inclined towards major near-term reform, but in the absence of sufficient support in the House, and with any Senate proposal likely less palatable to the chemical industry, such a goal seems unattainable.  At a minimum, the delay will give key members of the 112th Congress time to try to reach consensus on important points in the reform debate.

So, what will 2011 look like?  Unless there’s another crisis, such as tainted imported consumer products or an oil spill requiring the use of chemicals for which little safety information is publicly available, readers will probably see limited progress through 2011.  Closed-door meetings are certain to occur, a few hearings will take place and a bill may be introduced in the Senate – a bill may even be introduced in the House – but proposals are unlikely to advance significantly in the near-term.  Economic considerations will affect both the resources committed to the TSCA reform debate, as well as the details of any legislative proposals.  Efforts occurring in 2011 will be undertaken in the name of trying to adopt “sensible” reform that protects the environment and health without damaging the economy. 

With the Administration already taking steps to reconcile past differences with business leaders in preparation for the 2012 election, it seems unlikely that the White House will push for robust new legislation either.  So, don’t look for major legislative proposals coming from EPA anytime soon.  However, expect the ACC and others to try to persuade the Administration that TSCA Reform is a potential opportunity for bipartisanship. 

But what about the public’s and the states’ outcry for a more robust federal chemical regulatory program?  And what about the consensus among the chemicals industry, EPA, and environmental groups on the need for reform?  The outcry and the consensus are important and should not be dismissed for ultimately they will help ensure passage of a revised TSCA.  However, for the next year (and possibly longer), jobs creation, debt reduction, election politics, and efforts to reach consensus, are likely to delay reform.  In the interim, EPA will probably continue with its attempts to use existing authority to address chemical risks, despite promises of increasing Congressional oversight.