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June 22 — Hopes for reforming U.S. chemical law got a much needed boost in January 2015 when three key senators huddled just off the Senate floor in hopes of rescuing a legislative push that had been damaged just months earlier with the release of confidential negotiating documents.
Sens. Tom Udall (D-N.M.) and David Vitter (R-La.), leading the charge to overhaul the Toxic Substances Control Act, sought out the new head of the Senate Environment and Public Works Committee, Sen. James Inhofe (R-Okla.), in hopes of securing his personal buy-in for moving a bill with significant bipartisan support through the Senate.
“Can you imagine having a major environmental bill [passed] under your leadership at the committee?” Udall asked Inhofe, explaining where the bill currently stood.
“We're going to get on top of this,” the Oklahoma Republican replied, promising to throw his weight behind the effort.
“He was a man of his word from then on,” Udall told Bloomberg BNA.
That conversation spurred a committee markup in April 2015, a pivotal moment when the Senate bill gained its 60th pledged supporter in October and passage of a revised version in December. But that's when the unexpectedly difficult task of merging the House and Senate bills began.
What ultimately emerged from the more than five-year chemical safety reform push was the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which President Barack Obama signed into law June 22.
Lawmakers, aides and other key players described in interviews with Bloomberg BNA a process fraught with pitfalls, broken promises, compromise and ultimately overwhelming congressional support for passage.
But there is no agreement among the principal players about whether the path to TSCA reform should serve as a blueprint for future energy and environmental legislative efforts or whether “a perfect storm” came together to allow for the first update to the nation's primary chemicals law in 40 years.
“A lot of this was us trying to move them further right than they want to go and them trying to move us further left than we want to go, and can you find that happy medium?” Rep. John Shimkus (R-Ill.), who oversaw House efforts, told reporters. “We were fortunate to do that here. That's not always going to be the case.”
Earnest efforts at chemical safety reform began in 2011 when Vitter and Lautenberg, then New Jersey's senior senator, began discussions in hopes of crafting a “good, solid, bipartisan bill that we could both support,” according to the Louisiana Republican.
Those talks bore fruit in May 2013 with the introduction of the Chemical Safety Improvement Act of 2013. Supporters were encouraged that the legislation had the pledged support of eight Democrats and eight Republicans spanning the political spectrum. However supporters struggled to advance the bill further because then-chairwoman of the Environment and Public Works Committee, Sen. Barbara Boxer (D-Calif.), vocally opposed the bill.
Boxer was “shocked” upon the legislation's introduction and knew nothing of its development, a spokeswoman told Bloomberg BNA. She sought major changes to the bill and refused to vote on it in her committee without them.
Just two weeks after the bill's introduction, Lautenberg, who aides said remained hands-on and highly involved until the very end, passed away. Vitter, anxious to keep up momentum for the bill, quickly sought another Democratic partner to complete the New Jersey Democrat's efforts.
“I started looking immediately for other Democrats—literally had conversations about that going to his funeral in New York,” Vitter, who is retiring after this Congress, told Bloomberg BNA.
That's when Udall stepped up. The senators knew each other through their committee work but had not worked together previously. So, they went to dinner at the Monocle, a well-known restaurant by the Capitol, to get to know each other and discuss priorities for the bill.
That dinner kicked off more than a year of negotiations with various senators, both at the staff and lawmaker level. Talks collapsed in September 2014 and Boxer released confidential documents to the media, though her spokeswoman said she only did so after Vitter promised to do so on his own.
Vitter was incensed after the release, describing it at the time as a “press stunt/temper tantrum,” and saw it as evidence that Boxer was not negotiating in good faith. Observers said he was ready to abandon the push.
“There were plenty of times, literally too many to remember … where we didn’t walk away but just sort of turned away and let a couple of weeks pass,” he said.
Supporters returned in January 2015 reinvigorated from Republicans regaining control of the Senate and from the commitment of Inhofe, now chairman of the key environment panel, to mark up the chemicals legislation.
Both Udall and Vitter saw the committee vote as key to show the rest of the Senate that the bill stood a good chance of passage. Changes to the measure ahead of the April markup gained the support of three liberal Democratic senators—Sheldon Whitehouse (R.I.), Jeff Merkley (Ore.) and Cory Booker (N.J.)—and allowed for a 15-5 panel vote in favor of the legislation.
“That showed that we were going to be able to gain the bipartisanship to continue to move,” Udall said.
Supporters worked with senators on an individual basis to garner their support. By October, Sen. Richard Durbin (D-Ill.), the No. 2 Democrat in the Senate, and Sen. Ed Markey (D-Mass.), who earlier sponsored an alternative measure with Boxer, became the 59th and 60th public co-sponsors of the bill.
“It’s huge when you get somebody that high up in leadership and somebody with those kinds of environmental credentials on board,” one aide closely involved in negotiations told Bloomberg BNA. “I think that probably increased the inevitability of it a bit” and brought Boxer to the negotiating table in earnest.
Aides believed the bill actually had significantly more support than that, thinking it would get at least 80 to 85 votes if a floor vote occurred.
A spokeswoman for Boxer said the senator worked throughout the process to ensure the final bill is better than current law.
“This is not the bill she would have written, but it is the best that could be achieved at this time,” the spokeswoman told Bloomberg BNA in written responses. “Many people—especially some of the bill’s cosponsors—tried to end negotiations prematurely, but thanks to the efforts of Sen. Boxer and hundreds of public health organizations, the bill changed continually from start to finish.
“She has always said that any toxic chemicals reform bill must be better than current law, and the many critical fixes made to the bill during the long and winding legislative road make it better than current law,” the spokeswoman added.
Progress in the negotiations prompted Boxer to back off an earlier pledge to offer “hundreds” of amendments to the Senate bill if it hit the floor and agree to consider the measure in mere hours once on the floor.
That agreement was especially important, because Senate Republican leadership—though supportive of the underlying measure—was unwilling to burn days of precious floor time on its consideration, according to aides.
Supporters could finally see a clear path to Senate passage when a new obstacle “popped up out of nowhere” and threatened to derail the entire thing.
Across the Capitol, House Republicans and Democrats were figuring out their own approach to revamping TSCA, which had gone essentially unchanged since the days of the Ford administration when gasoline cost 57 cents a gallon on average.
Early on, Energy and Commerce Committee Chairman Fred Upton (R-Mich.) had Shimkus, chairman of the relevant subcommittee, take a lead role in getting something done on chemical reform.
Chances on reaching consensus were viewed as somewhat improved in the 114th Congress with Rep. Frank Pallone (D-N.J.), who took over from former Rep. Henry Waxman (D-Calif.) as top Democrat on the panel, and Rep. Paul Tonko (D-N.Y.) leading the Democratic efforts.
“Are you going to try to message something or are you trying to get something signed into law?” Pallone asked Shimkus and Upton at an early meeting, according to several aides. The Republicans answered that they wanted a bipartisan bill and staff began to discuss the scope of the legislation.
Republican and Democratic staff quickly decided they would pursue legislation narrower in scope that nevertheless contained important reform elements. Aides from both parties said there was a deliberate decision to avoid many of the more controversial aspects of reform where both parties were further apart.
“We put together a much narrower package but it included really essential reforms,” a House Democratic aide told Bloomberg BNA. “We had created a really good product that skirted a lot of issues that were really sensitive to a lot of groups.”
Then, ahead of a vote in June 2015 on the House bill, known as the TSCA Modernization Act (H.R. 2576), came another curve ball.
Republican leadership wanted to know if a vote on the measure could be held under suspension of the rules, a procedural tactic that speeds consideration of legislation but requires two-thirds of members to approve a bill.
Aides were initially nervous about such an approach. Just weeks earlier, several dozen Tea Party Republicans voted against a noncontroversial bill requiring the Environmental Protection Agency to draw up a science-based plan to tackle algae toxins in drinking water supplies, and the aides feared how the same group would approach a bill granting the agency more regulatory authority.
But several conservative lawmakers on the committee, including House Majority Whip Steve Scalise (R-La.) and Chairman of the House Republican Study Committee Bill Flores (R-Texas), personally worked to get those members on board before the vote, several aides said.
“I’ve never had an experience where members got so involved in the weeds,” one Republican aide recalled. “They began to learn the issue. They began to ask questions.”
Ultimately, the House passed its narrower version of the chemicals overhaul by a 398-1 margin and attention turned back to the Senate.
In the upper chamber, two Republican members—Sens. Richard Burr (N.C.) and Kelly Ayotte (N.H.)—announced in early October 2015 that they would block advancing the legislation over the expiration of an environmental conservation program.
Several Senate aides said the move never made sense to them because Burr and Ayotte were not able to leverage the hold into a vote on that program, the Land and Water Conservation Fund, though a reauthorization was ultimately included in an end-of-year government spending deal.
“From my perspective, I understood the idea of trying to get leverage for a priority but it was kind of taking a hostage nobody cared about,” one Republican aide said. “We just felt like, ‘All you’re doing is slowing us down.'”
After more than two months, Burr and Ayotte lifted their hold on the TSCA bill but a new obstacle emerged over how precisely the Senate would consider the measure.
Upon resolving that impasse, the Senate passed the bill in December 2015 and turned to merging the dueling measures into one finished product.
Both Senate and House aides and members said it ended up being much harder to reconcile the two versions of the bills than they originally anticipated.
Staff from both chambers began meeting in earnest about how they might merge the two bills after Thanksgiving 2015, but spent the first couple of months examining the other chamber's approach to TSCA reform line-by-line.
A couple of principles guided the bicameral negotiations process: House Republicans and Democrats vowed to stay united to be in a stronger negotiating position and there was a strong desire for a bipartisan vote in both chambers.
What emerged was a series of “weird alliances and fights,” according to one Senate aide closely involved in the negotiations.
“[House Democrats] got a lot of deference from the House Republicans because they wanted to stick together,” the aide said. “You have Pallone’s office pushing House Republicans to support things that Senate Republicans didn’t support. How can the House, which doesn’t need a single Democrat, justify moving it to the left?”
House lawmakers hung together until the very end. A House Democratic aide told Bloomberg BNA: “We were not comfortable with a lot of the trades made in the Senate bill.”
During the final week, it became clear certain sections of the Senate bill, especially those concerning federal preemption of state regulatory authority that had Boxer's sign off, would not be changed without effectively killing the bill.
A number of options, like simply taking up the original Senate-passed bill, were discussed but ultimately not seriously pursued, according to one Republican aide.
House Republicans then signaled they could move the bill without the support of some House Democrats.
“Pallone's folks pushed too far and put the House Republicans in a position where they had to separate or blow up the bill,” one aide closely involved in the negotiations said.
Another aide said they estimated approximately 100 Democrats would support the emerging bill, even without the support of some senior House Democrats.
The Obama administration had signaled it would sign the legislation and, at that point in the process, House Minority Leader Nancy Pelosi (D-Calif.) and House Minority Whip Steny Hoyer (D-Md.), got involved to ensure the deal got done.
“What helped was getting the Pelosi and Hoyer people in there,” a Senate Republican aide said. “They saw the writing on the wall.”
Negotiations continued throughout the weekend and into the early morning hours preceding an anticipated House vote. Eventually, changes were incorporated into the legislation that secured Pallone's, but not Tonko's, support.
Among those tweaks were clarifications to the scope of state preemption and new language allowing 10 chemicals on EPA's existing work plan to be exempted from the so-called “preemption pause,”—the compromise on the federal-state preemption issue.
Boxer's staff also said they got provisions in the final bill requiring the EPA to give priority to known carcinogens like asbestos, mandating that the agency consider whether a chemical is stored near drinking water, and blocking any state actions implemented or enacted by April 22, 2016, from federal preemption.
A weekend conference call yielded further technical changes to the legislation, but aides nervously watched the clock. The House Rules Committee, a necessary step before floor consideration, had already extended its deadline for the bill to be submitted until noon on May 23 and warned “there's no such thing as TSCA if you're one minute late,” according to an aide.
An aide sprinted from the Rayburn House Office Building to the Capitol, where the Rules Committee requires paper submissions, to submit the final version just before the deadline.
One day later, on May 24, the House voted overwhelmingly in favor of the legislation 403-12, garnering two more votes than did the last significant environmental statute rewrite—the 1990 Clean Air Act amendments.
Several weeks later, after overcoming an unexpected hold from Sen. Rand Paul (R-Ky.), the Senate concurred by voice vote with the House-passed legislation and sent the measure on to the president.
In the weeks following final passage, major players were still not in agreement about what could be learned from the five-year legislative process on TSCA reform.
“I'm just an impatient person in general and Congress is a slow place in general,” Vitter said. “I always saw a path forward. It was just taking too long. That was very frustrating.”
The spokeswoman for Boxer said the senator believed the process for TSCA reform was “not a model for passing legislation” and required “extraordinary efforts” to avoid weakening environmental protections.
“Members need to be willing to stop a bad bill—even if it has a beautiful name,” the spokeswoman said. “It's not easy, but it is necessary if the goal is to protect public health. Sen. Boxer has often worked with stakeholders to pass major legislation, but in this case, industry had an oversized role. That should not be a model.”
While House Republican members and aides expressed happiness with the finished product, there are signs the last-minute break from some Democrats could have longer-term consequences.
“It's not the first time that Energy and Commerce Republicans have backed out of a deal, but it was significant that they did,” a House Democratic aide said. “And it's going to have long-lasting repercussions, particularly if Mr. Shimkus finds himself in an elevated position next Congress.”
Even Udall, while saying the process “can easily be a model for how we should work together” and earning bicameral praise for his persistence and patience, acknowledged it was nothing short of remarkable that the chemical safety revamp ultimately came together.
“When people see what's happened, they'll say—like others have—that this is pretty close to a miracle in this environment,” he said.
To contact the reporter on this story: Anthony Adragna in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Larry Pearl at email@example.com
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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