Senator Frank Lautenberg (D-NJ), the lone ranger on toxic substance reform, dies.
Sen. Lautenberg spent 28 years as a U.S. senator [pdf] from New Jersey, serving five terms and becoming, according to WNYC, the longest-serving senator in the state's history. He was a champion for the environment and for protecting public health. Among his many signature achievements was the Toxic Right to Know law that created the Toxic Release Inventory, which allows the public to find out which pollutants are released in their neighborhood.
Sen. Lautenberg also led the charge for years to add teeth to the Toxic Substances Control Act (TSCA, known as "Tosca"). Alas, he has passed without seeing this work come to fruition.
The Current Sorry State of U.S. Chemical Regulation
Ever since 1976, TSCA has been the chief vehicle through which manufactured chemicals are regulated in the United States. But ask almost anyone you know who knows anything about this regulation (or lack thereof), and they'll tell you that TSCA is "broken." (See some critiques of the law here, here, here and here.)
TSCA's intention was to give the Environmental Protection Agency the power to protect the public and the environment from "unreasonable risks of injury ... associated with the manufacture, processing, distribution in commerce, use, or disposal of chemical substances" both naturally occurring and synthetic. (Excluded were food, cosmetics and pesticides.)
That may have been the intention, but in practice such empowerment to protect has just not worked. The "unreasonable risk of injury" has been interpreted by the courts as an extremely high bar for EPA to jump over to justify regulations; the requirement that the agency not only prove harm but also prove that harm "unreasonable" is something the courts have ruled requires cost-benefit analysis and consideration of alternatives. And, as a result, despite the tens of thousands of chemicals produced by the chemical industry, a mere handful are regulated. EPA was not even able to regulate asbestos.
It has long been recognized that TSCA is in need of reform. And recent polls show bipartisan (see here and here) and business support for strengthening the protections against toxic chemicals. In fact, things have been moving on this front on the state level, according to CommonDreams.org, with "26 states .. considering about 110 different bills and ... victories in Maryland, Minnesota and Vermont," in 2013 alone. (See also here.) But on the national level, it's been much slower going. But going it is, thanks to Sen. Lautenberg.
A Force Behind Updating Toxic Chemical Regulations
For years, Senator Lautenberg has led the charge to make TSCA stronger and more effective. But without success. His Safe Chemicals Act of 2011 was widely favored by the environmental community and got past the Senate Environment and Public Works Committee (along party lines) but never made it to the Senate floor (and it had a zero chance of making it through the House).
When the Safe Chemicals Act (S.847) resurfaced this year, it seemed that for the senator, who announced he would not stand for reelection in 2014, the stakes for passage could not have been higher. And perhaps for this reason, and with seemingly little prospect for its passage, Lautenberg surprised folks on Capitol Hill and many in the environmental community by co-sponsoring with Sen. David Vitter (R-LA) the Chemical Safety Improvement Act (S.1009), a "compromise" bill that has been greeted with a good deal of controversy. While some are hailing it as a masterful compromise that could actually get passed (see here, here, here, here [pdf] and here [pdf]), others have largely condemned it as not going far enough to substantively fix TSCA's big weaknesses (see here, here, here and here).
Which viewpoint is correct? Actually, I was working on a post for today to address that very question when I saw the news that Senator Lautenberg had died. Let's forego that question for a while and simply reflect on the passing of a great friend of the environment and a staunch advocate for public health.
Sen. Lautenberg, the last surviving World War II veteran in the Senate, has passed without seeing TSCA reform become a reality. It's still possible that that reform will be part of his legacy. Let's see what Congress does.