Changes in the Air

A worker holding asbestos.

A worker holding asbestos. (iStockphoto)

In 1992 the Subcommittee on Environment, Energy, and Natural Resources of the U.S. House of Representatives held a hearing to discuss the current state of the Toxic Substances Control Act (TSCA). The title underlined the concerns of the committee’s senior members—“Toxic Substances Control: Still Waiting After All These Years.”

The meeting took place less than six months after the U.S. Court of Appeals rejected the efforts of the Environmental Protection Agency (EPA) to ban or place restrictions on nearly all commercial uses of asbestos. The case had left the agency exasperated, demoralized, and wondering about its ability to successfully implement its chemicals program. The defeat proved significant enough to reawaken the interest of Congress in the fate of TSCA, the law that allows the federal government to monitor and regulate 80,000-plus chemicals not covered by other statutes (like pesticides and food additives). But interest waxes and wanes in the halls of Congress—and among advocates and public audiences, too. Following less than a handful of meetings on Capitol Hill by both the House and Senate and the 1994 change in party leadership, interests turned elsewhere, and TSCA again slipped out of the political spotlight. But attention returned to TSCA when advocates in industry, government, and the nonprofit sector realized that the 1970s-era law could not meet 21st-century challenges. In 2009 new champions in both the House and Senate announced their intentions to propose reform measures to the decades-old statute. 

CHF’s Center for Contemporary History and Policy decided to take advantage of this opportunity both to document the establishment of TSCA and to find ways to make this history speak to present reform efforts. The Center wanted to capture and offer a different set of voices than are typically heard during this process; so staff began interviewing those individuals responsible in part for writing and implementing the law. These stories offer a unique perspective on the ways in which the law evolved through the process of drafting, negotiating, and implementing TSCA over the course of four decades. To date we have conducted more than a dozen interviews with individuals who helped create and shape TSCA. Together the interviews and associated materials offer a life history of the law that must be understood if efforts to modernize it are to succeed.

Capturing these stories offers the opportunity to see the same event from a multitude of perspectives, creating what is sometimes called a Rashomon effect—a reference to the Japanese film by that name that examines a crime told from the perspective of each of the four main characters. Take the case of asbestos: almost half of our interviewees had some role in the EPA’s efforts to ban it. Despite this shared experience, a singular, “true” history of the asbestos story never quite emerges. Each interviewee has a different answer to explain why the rule failed and why the decision was never appealed. But we gain an understanding of how individuals and groups within the EPA experienced that event differently, which offers tremendous insight into the actions taken (and not taken) in the wake of the court’s decision.

Beyond the problem of asbestos, it turns out that writing and implementing environmental statutes is messy business, as our interviewees have elucidated for us. In the heyday of U.S. environmental lawmaking (the 1970s) there wasn’t much expertise or experience to be had in constructing these laws. Writing statutes proceeded through an effort to adapt what people already knew and apply it to something new. In the case of chemicals management that effort meant trying to find ways to adapt the pesticides law (FIFRA, the Federal Insecticide, Fungicide, and Rodenticide Act) to the broader world of commercial chemicals. But the model never quite fit. And unlike the more famous Clean Air and Clean Water acts, TSCA didn’t come with a set of mandates—specific actionable items to be executed or else. Instead, the law asked the EPA to set up a program to create an inventory of all chemicals in commerce, regulate those chemicals as needed, and develop a process for managing the introduction of new chemicals into commercial markets—and get rid of PCBs (polychlorinated biphenyls). While some have suggested that the interpretive flexibility available in the law could have been perceived as an asset, in reality the combination of a law without mandates and an inconsistent constituency of congressional leaders and advocacy organizations meant that TSCA never received the critical feedback, scrutiny, and amendments that the other environmental statutes garnered over the same period.

The enthusiasm for reform of TSCA that could be found buzzing through Washington in late 2009 and early 2010 has dissipated now, but many of the key advocacy organizations know that a system set up in the 1970s can’t possibly meet the needs of a 21st-century chemical-based economy. Managing the complex and interwoven flow of molecules through economies, ecologies, and political boundaries is no easy task. As stakeholders and Congress move forward, they should be mindful of the lessons available from the past.

Jody A. Roberts is the director of CHF’s Center for Contemporary History and Policy.