U.S. Supreme Court Fight Scrambles TSCA Rewrite Chances

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By Anthony Adragna

Feb. 18 — The Senate could effectively shut down if leaders cannot agree on a path forward for President Barack Obama's forthcoming pick for the U.S. Supreme Court, potentially imperiling the chances of revamping the nation's primary chemicals law, former lawmakers and congressional aides told Bloomberg BNA.

Overhauling the Toxic Substances Control Act still faces better odds than most legislative efforts because the House and Senate both passed their bills revamping the statute by wide margins. But the legislation's pathway to becoming law could narrow considerably depending on how the Supreme Court battle shapes up in the weeks ahead.

“Unless there is some agreement on how to proceed, this has the potential to affect much of the Senate business for the entire year,” former Sen. Byron Dorgan (D-N.D.) told Bloomberg BNA in an e-mail. “There is a difference between considering and delaying or defeating a nomination, and refusing to even acknowledge or consider a nomination. The latter position could poison whatever prospect of bipartisanship might exist on some other important issues.”

The Senate's schedule was already expected to not be overly strenuous this year given the presidential election, but Justice Antonin Scalia's sudden death Feb. 13 further scrambled the landscape.

Senate Majority Leader Mitch McConnell (R-Ky.) said almost as soon the death was announced that the vacancy “should not be filled until we have a new President.” An aide to McConnell said Feb. 18 that it was up to Democrats to decide whether they will block broadly supported legislation in protest over Republicans’ refusal to consider an Obama nominee.

Work Stoppage Eyed

Some Republicans agree that if Senate leadership refuses to consider an Obama Supreme Court nominee that the chamber's work could grind to a halt. That would imperil a broad swath of measures, including any merged TSCA reform package from the House and Senate-passed bills (S. 697; H.R. 2576).

“Depending on how each side digs in over the next week or so, you could really see the Senate shut down for the year,” Chris Vieson, who served as director of floor operations for former House Majority Leader Eric Cantor (R-Va.), told Bloomberg BNA. “If you have this lengthy battle for 10 months on one nominee, you can only really get small stuff done.”

Chris Miller, former environmental adviser to Senate Minority Leader Harry Reid (D-Nev.), agreed something like TSCA reform—even with 60 bipartisan co-sponsors in the Senate—was exactly the type of legislation that could be caught in the crossfire and ultimately not passed.

“I'd be on the lookout for a slowdown from Senate Democrats on all or maybe select legislative business items if Republicans really follow through on McConnell’s initial threat,” Miller said.

Others More Bullish

Other former senior aides were more bullish that the Senate could still pass select items. One former Senate Republican leadership aide pointed to 2013 when Reid launched the so-called nuclear option by eliminating the filibuster for most nominees, but the chamber continued work on various legislation.

To be sure, the aide said, Republicans erected additional procedural barriers to many requests and did not agree to unanimous consent requests for many typically non-controversial matters. But it's unlikely Democrats would completely block bills with significant buy-in from both parties, like the TSCA bills, over the Supreme Court battle, the aide said.

Benjamin Dunham, former chief counsel to the late New Jersey Sen. Frank Lautenberg (D), agreed that the significant backing from important members of both parties would prevent a TSCA rewrite from getting swallowed up in any Senate gridlock.

“This is a top priority for important members of both parties, so I think it will find a way to slip through even if other bills are held up,” Dunham, now a senior managing director with Dentons, told Bloomberg BNA. “There will be some exceptions to any effort to stop work in the Senate, and I think passing a final TSCA bill will find a way through as well.”

Whether Senate business continues through the year depends on a host of factors, including whether Republican senators continue to back McConnell's call not to consider an Obama Supreme Court nominee and who the president selects for consideration, former Sen. Mark Pryor (D-Ark.) told Bloomberg BNA in an e-mail.

“There will be lots of wrangling before we know how it works out,” Pryor, now a partner with Venable LLP, said.

Vitter Remains ‘Hopeful.'

Despite the battle over the Supreme Court vacancy looming, Sen. David Vitter (R-La.), one of the lead sponsors of the chemical statute overhaul, said he remained confident the legislation could be passed.

“I am hopeful that unrelated issues will not stop its passage given the widespread support for TSCA reform,” Vitter told Bloomberg BNA in a statement.

Other groups also pushing for TSCA reform said they remained confident the legislation's strong bipartisan backing would carry it across the finish line.

“We continue to believe that a reform legislation that is so broadly supported by both Democrats and Republicans in the House and the Senate can and will reach the President’s desk, regardless of the other issues before the Senate,” Anne Kolton, vice president of communications at the American Chemistry Council, told Bloomberg BNA.

Richard Denison, a senior scientist at the Environmental Defense Fund (EDF), described the chemicals reform bill as “one of a small handful of things pending in Congress” with adequate support from both Democrats and Republicans to move and said that a legislative slowdown due to the Supreme Court battle might “be motive for Congress to move those things it can move,” like TSCA.

House and Senate staff are currently working at resolving differences between the narrower House-passed H.R. 2576 and the broader S. 697. Sen. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, recently told Bloomberg BNA the House was moving more slowly than he wanted but remained optimistic the bill would pass in 2016.

To contact the reporter on this story: Anthony Adragna in Washington at aadragna@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

Key Quotes

Former Sen. Byron Dorgan (D-N.D.): “Unless there is some agreement on how to proceed, this has the potential to affect much of the Senate business for the entire year.”

Benjamin Dunham, former chief counsel to late Sen. Frank Lautenberg: “There will be some exceptions to any effort to stop work in the Senate, and I think passing a final TSCA bill will find a way through as well.”

Chris Vieson, former senior House aide: “If you have this lengthy battle for 10 months on one nominee, you can only really get small stuff done.”

Sen. David Vitter (R-La.): “I am hopeful that unrelated issues will not stop its passage given the widespread support for TSCA reform.”