Dan Morain

Dan Morain: State’s attempt to regulate toxic chemicals draws long list of opposition

The list is impressive: U.S. Chamber of Commerce, the American Chemistry Council, the American Petroleum Institute, Exxon, ConocoPhillips, Alliance of Automobile Manufacturers, Toyota, General Motors, Koch Industries, Dow Chemical, General Electric, National Manufacturers Association. The list goes on.

These 12 heavyweights are among 75 corporations and trade groups that have weighed in on one piece of legislation pending in the U.S. Senate. At least in part, the bill is intended to thwart California’s latest foray into the regulation of interstate commerce.

Five years after the Legislature approved so-called green chemistry legislation, the Department of Toxic Substances Control published regulations establishing a way to evaluate chemicals in consumer products and perhaps, in time, remove them.

“We fully expect that industry will challenge the regulations,” said Debbie Rafael, the department’s director.

There are 80,000 chemicals in commerce. Thousands more are added each year. The federal government tracks them. But although the federal Toxic Substances Control Act was enacted in 1976, the feds have failed to ban even the most hazardous chemicals.

California, as is its wont, embarked on its own path with the green chemistry legislation, leading, finally, to last week’s release of a list of 164 chemicals that are widely used and linked to cancer or are reproductive or respiratory toxins.

Food and pesticides aren’t on the list. But many others are, including components that make up jet fuel and, apparently, create new-car smell.

The department intends to select its first list of four or five especially troublesome chemicals out of the 164 next year, and urge industry to seek alternatives. Over time and in the extreme, the state could ban their use in California, except that industry has turned to Congress for help.

Sen. David Vitter, a Louisiana Republican, is taking the lead on what he calls the Chemical Safety Improvement Act. Based on the list compiled by the nonpartisan Center for Responsive politics, industry is especially interested in the outcome of Vitter’s legislation. The legislation, S. 1009, has 13 Republican co-sponsors and 12 Democrats, including Dick Durbin of Illinois and Charles Schumer of New York. Although the bill’s passage is far from certain, members of Congress ignore the industry at their peril. The 12 heavyweights have spent $92 million on lobbying in Washington so far this year, according to the Center for Responsive Politics.

Chemical, oil and manufacturing companies appear willing to cede significant power to the Environmental Protection Agency to regulate chemicals, so long as the feds gain new power to limit state regulatory efforts – to the alarm of some states.

California Attorney General Kamala Harris sent a letter with eight other state attorneys general to Congress attesting to their “deep concerns” about the preemption language.

Some environmentalists, however, see an opportunity, so long as the legislation doesn’t limit the states.

Richard Denison, a senior scientist at the Environmental Defense Fund in Washington, has been working on the issue for two decades, with little to show for it. He believes that’s changing, largely because California and a handful of other states are trying to fill the void left by the federal government’s inability to regulate chemicals.

“We’ve never had an opening like this,” Denison told me.

Industry representatives say California’s angst over pre-emption is overblown. Nothing in Vitter’s legislation as written would bar states from gathering information, though once they gather the information, states likely couldn’t ban products.

“The disagreement is mostly theoretical,” said Washington attorney Mark N. Duvall, whose clients include the American Chemistry Council and automakers.

The issue is anything but simple. Consider the car. Various federal and state agencies have regulatory authority over cars. But no single agency focuses on material used to make a car. Under its green chemistry regulation, California’s Department of Toxic Substances Control could take a whack at what goes into the construction of a car.

That prompted the Alliance of Automobile Manufacturers to sponsor legislation in Sacramento to exempt automakers from the process.

A legislative analysis of the bill by Sen. Ricardo Lara, a Los Angeles-area Democrat, noted that cars include such toxins as phthalates, lead and copper. New-car smell “can be harmful to human health, and toxic flame retardants can leach out of car seats every time a person sits down,” the staff analysis says. The bill stalled in April but likely will re-emerge in 2014.

Without a doubt, consumers seek to limit their exposure to toxins. Walmart and Procter & Gamble are among the companies that recently announced they are looking for ways to limit chemicals. But self-policing has its limits.

Chemical companies make money off chemicals. Efforts by California and other states threaten that business, which is why industry covets pre-emption. The U.S. EPA ought to have more authority over toxic chemicals, but not at the expense of states’ ability to protect their own.