A bill to improve reporting standards for toxic chemicals has passed out of committee to the U.S. Senate for a vote, and anti-regulatory czar Cass Sunstein has headed back to academia.

The Safe Chemicals Act [3] (S. 847 [4]) would promote the use of safer alternatives to hazardous chemicals and put common sense limits on toxic chemicals. It has been approved [5] by the U.S. Senate Environment and Public Works Committee and passed to the full Senate for a vote.

The bill, sponsored by Senator Frank Lautenberg (D-NJ), would amend the Toxic Substances Control Act of 1976 [6] (TSCA). As the Center for Media and Democracy (CMD) has reported [7], Lautenberg has called TSCA a flawed law that prevents the U.S. Environmental Protection Agency [8] (EPA) "from taking even modest steps to collect adequate data on chemical risks or to appropriately manage those risks." The Safe Chemicals Act would be the first overhaul of federal chemical law since it was created in 1976.

According to Lindsay Dahl of the Safer Chemicals Healthy Families (SCHF) coalition, "This is the first vote to update chemical laws in over 36 years. This is a vote to address the links between hazardous chemicals and chronic disease, cancer, and learning disabilities." The over 300 groups that make up the SCHF coalition are "focused on updating our federal laws relating to toxic chemicals in a way that prevents alarming rise of chronic disease we've been seeing in this country," Dahl told CMD.

Jason Rano, Director of Government Affairs at the Environmental Working Group (EWG), told CMD that the committee markup was an important step in the right direction, but that the legislation still faces hurdles because of bipartisan disagreement in Congress. "Everyone agrees this needs to be done. Obviously the devil is in the details. We'll be working with all parties to help move it along," he told CMD.

"That Goose Is Cooked": Regulatory Rule Changes Stalled

As CMD reported in March [9], under TSCA, the EPA is prevented from appropriately assessing and banning older chemicals, the majority of chemicals on the market. But the EPA has still attempted to move forward with chemical regulation in the face of a weak law and virulent opposition from the chemical industry. The EPA's latest effort was to create a "Chemicals of Concern List [10]," which flagged new science on potentially harmful chemicals. But the EPA's list has been held up at the Office of Information and Regulatory Affairs [11] (OIRA), the place where protective rules go to die, for over two years [12]. As the Center for Progressive Reform [13] (CPR) puts it, "That goose is cooked."

The slow death of the proposed rule at OIRA prompted the renewed effort to secure the passage of the Safe Chemicals Act. But advocates might be taking a second look at OIRA, now that the business-friendly head of the organization is stepping down.

Head of Regulatory "Killing Ground" Quits

CPR has called OIRA "a killing ground for protective rules [14]." Its November 2011 report found that OIRA changed 84 percent of environmental regulations, and 65 percent of other agencies' regulations, from 2001 through 2011. And according to the report, the change rate is worse under Obama than it was under George W. Bush (75 percent [15], according to the New York Times). These changes almost exclusively weaken rules, according to a number of studies cited in CPR's analysis.

The head of OIRA under the Obama administration has been well-known author and Harvard academic Cass Sunstein [16]. Robert Weissman, president of Public Citizen, told CMD, "Sunstein has basically maintained OIRA as it has functioned under Republican administrations, as a big business screen on important new regulatory protections. I think that he operates in good faith, but I think that's how he has functioned. OIRA has been a sink-hole for rules that were offered by agencies across the landscape. It subjected new rules to extensive and unwarranted delays, and it adjusted rules overwhelmingly, or perhaps even entirely, in the direction favored by regulated business interests rather than to advance consumer environmental health, safety, financial security, or other public objectives."

On August 3, 2012, the White House announced [17] Sunstein's resignation and return to academics at Harvard Law School. Boris Bershteyn will become acting OIRA administrator. Bershteyn is a relative political unknown who was a law clerk under David Souter, President George H.W. Bush's appointment to the Supreme Court who moved [18] from conservative to liberal in the 19 years of his judgeship. According to [19] his LinkedIn profile, his first job out of undergraduate school at Stanford was as an associate consultant at Bain and Company (not Bain Capital, Mitt Romney's private equity firm, but the business consulting firm from which it spun off).

Senate to Vote on Protective Law

While major changes at OIRA are not anticipated and any chemical law is unlikely to pass a hostile, Republican-controlled House, campaigners are undaunted and moving forward to build support in Congress for comprehensive chemical reform. Lindsay Dahl told CMD that the fact that the Safe Chemicals Act will come up for a vote is a historic step in the right direction. SCHF has asked its coalition members and supporters to encourage Senators to support S. 847 [20].