Democratic Sens. Barbara Boxer, Edward Markey, and Tom Udall are normally eye-to-eye on most issues, especially when it comes to the environment. Now, they're at loggerheads over the legacy of the late liberal Sen. Frank Lautenberg and a bill that would in theory enhance the power of the EPA.
Lautenberg had tried for years to update the nearly 40-year-old law regulating the chemical industry that has left the Environmental Protection Agency powerless to test or regulate the roughly 80,000 chemicals in commerce, even ones proven to be harmful, such as asbestos or BPA.
Just as Lautenberg worked with Louisiana Republican and EPA foe David Vitter, so has Udall, the New Mexico Democrat who also is the son of former Interior Secretary Stewart Udall.
After two years of drafting, Udall and Vitter this month unveiled a bipartisan agreement to overhaul the 1976 Toxic Substances Control Act, setting up minimum benchmarks for EPA to test and regulate chemicals, setting up a new user fee system to pay for it, and clearing up a lengthy backlog to allow EPA to move more quickly. Now with up to 20 cosponsors evenly split between two parties and the support of Republican Environment and Public Works Committee Chairman James Inhofe and the chemical industry, it would seem to have a clear path to the floor.
Immediately, the cracks on the Left began to show. The next day, Boxer and Markey unveiled a competing TSCA reform bill, saying the Udall-Vitter measure would undercut states' ability to regulate chemicals and give the industry too much power over what chemicals EPA controls, and how the agency does it.
On Tuesday, Udall's office brought out chemical experts to talk about his bill. Not to be outdone, Boxer and Markey held their own news conference opposing the Udall-Vitter measure with a dozen public health advocates and legal officials, including famed California activist Erin Brockovich.
Boxer's office has been accused of leaking draft copies of the bill to drum up opposition. There were reports that she questioned Lautenberg's state of mind when he signed the original agreement with Vitter. She's even accused Udall and Vitter of letting the American Chemistry Council write the bill, pointing to a Word document showing that ACC had edited the file (both ACC and Udall's office have said that just reflects that ACC had commented on the bill, as had many outside groups).
Even the bills' names can be seen as jabs at each other. After Udall and Vitter named their bill after Lautenberg, who passed away in 2013 after decades of work on chemical reform, Boxer and Markey rolled out their own bearing the names of Alan Reinstein, who passed away after asbestos exposure, and Trevor Schaefer, who survived a brain tumor after being exposed to toxic substances.
"I loved Frank Lautenberg so much, and it's with deep respect and a heavy heart that I say all of this about a bill that bears his name," Boxer said.
Boxer opposed the original bill from Vitter and Lautenberg when it was introduced in 2013, and while the measure has since moved farther to the left based on feedback, and was the backbone for the new legislation, it still lacks support from key public health groups.
Asked about whether there were changes that could be made to the compromise bill, Boxer said she could "tick off 100 things that I would change."
The rhetoric has become so heated that Udall had to plead for cooler heads at an Environment and Public Works Committee hearing on the bill Wednesday.
"I urge everyone participating in this hearing to reject attacks on anyone's integrity, character and motivations. Unfortunately I've fielded a few of those," he said. "They do not concern me because they are absurd and unfounded, but they do a disservice to the legislative process."
The major sticking point between the camps has been on whether and when the EPA can supersede state regulations on chemicals. The bill's sponsors say EPA rules would preempt state laws only after it designates a high priority chemical (rather than a low priority designation that does not require new restrictions) and only for certain uses. So if EPA were evaluating a chemical's use in, say, food packaging, a state still could enforce laws about that chemical's treatment in other household products. A waiver process also would give states an avenue to keep their laws.
But the bill's opponents have said the language would go much further. The offices of eight attorneys general, including those from California and Washington, have said that the bill would effectively block their rules and allow the industry to produce potentially harmful chemicals while the EPA deliberates. Boxer, whose home state has among the nation's toughest chemical laws, has made it clear that any bill that weakens or upsets those regulations is a no-go.
But that hasn't damaged support from other Democrats whose states haven't stepped up on chemicals or can't afford to. Michigan freshman Sen. Gary Peters signed onto the bill after Wednesday's hearing, and Virginia's Mark Warner also cosponsored it this week, bringing the total of Democratic cosponsors to ten.
There's plenty else to tackle on the bill, but those issues appear somewhat less contentious. The Udall-Vitter bill says chemicals can only be regulated if they pose "unreasonable risk" to the public, a step down from the more stringent "reasonable certainty of no harm" standard in the Boxer-Markey bill. The Udall-Vitter bill sets a minimum requirement that EPA regulate 25 chemicals in the first five years, a number critics have said is too low given the thousands of chemicals in commerce.
Udall spokesman Jen Talhelm said his office was "optimistic about the support behind the bill and the productive discussions that are going on." Members such as Democrat Tom Carper of Delaware have been working behind the scenes to bring members together, and several committee members say it's an area where they see a chance for a bipartisan agreement.
Even Markey said the competing bills didn't portend doom, saying there was enough will to reform the outdated bill.
"Many issues start with Democrats not all lined up," he said. "I'm always an optimist about the legislative process and the ability for people to hear the evidence. The process leads to people being more open minded to changes that can make it better."
The EPW hearing heard from Lautenberg's widow, Bonnie, who has lent her support to the Udall-Vitter language as a capper to her late husband's legacy. She pushed the committee to find common ground.
"Please work out your differences for every family," she said at the hearing. "Far too many chemicals are on the market without any sort of testing."