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Political Turmoil Muddies Regulatory Moves

Jan. 16, 2019
Changes in Congress and next year’s election unsettle the landscape

2019 started with a political bang. The President’s decision to allow a partial government shutdown in the absence of funding for the “wall” will continue to inspire federal administrative and regulatory havoc for months to come. This is particularly true of the U.S. Environmental Protection Agency’s (EPA) Office of Chemical Safety and Pollution Prevention (OCSPP) as it administers the programs under the Toxic Substances Control Act (TSCA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), both of which maintain hugely important fees-for-service programs.


The Big Picture

Mid-term elections redefined the political winds in Washington. The 2020 Presidential election race has begun in earnest. What these new currents will mean for the EPA and OCSPP is subject to much speculation. Will aggressive oversight by the new Democratic House majority stymie Administration initiatives? Will the Administration continue to move forward on numerous initiatives to “reform” Washington? Or, will much of Trump’s anticipated agenda remain unfulfilled, prospective, and fluid at best? Finally, will any bipartisan cooperation occur on any substantial legislation or political tumult while the wheels of government grind on in spite of what some refer to as “the circus?”

Behind the more-visible political activities and rhetoric of both parties, agencies must attend to serious business, especially the approval and regulation of industrial and agricultural chemicals. For OCSPP, the agenda remains busy as the not-so-new (but immensely important) TSCA amendments, now 30 months after enactment, reach critical decision points about key term definitions and appropriate approaches to assessing chemical risks. FIFRA issues remain controversial with regard to both individual pesticides causing controversies (for example, chlorpyrifos) as well as continued debates about policies used to comply with the Endangered Species Act (ESA), which necessarily involves interagency coordination — always a tenuous endeavor.

With Democrats now in charge of the House of Representatives, the EPA and other agencies will face intense scrutiny and probing inquiries as part of Congressional oversight of Executive Branch agencies.

Effective oversight is no small task and will take some time to develop as the new Congress organizes committee leadership positions and jurisdictions (both formal and informal) between committee responsibilities. The committees must hire new staff that will then have to become familiar with both the subject matter and how to conduct oversight. Compared to when Democrats last had control, some important veterans are now retired. Specifically, Representatives Henry Waxman (D-CA) and John Dingell (D-MI) are gone; the absence of their oversight experience over EPA programs will be noticeable. For OCSPP, the major committees of jurisdiction in the House are the Agriculture Committee for FIFRA and the Energy and Commerce Committee for TSCA and the Federal Food, Drug, and Cosmetic Act, which dictates the requirements the EPA must follow to ensure the safety of pesticide residue on food.

In the Senate, at least four Senators widely presumed to be Presidential candidates are on the Environment and Public Works Committee, which has jurisdiction over TSCA implementation. This will allow Senators Cory Booker (D-NJ), Kirsten Gillibrand (D-NY), Jeff Merkley (D-OR), and Bernie Sanders (D-VT) to have a platform to emphasize environmental protection issues on a regular basis. The Senate Agriculture Committee, with jurisdiction over FIFRA, has three potential Presidential candidates: Senators Amy Klobuchar (D-MN), Gillibrand, and Sherrod Brown (D-OH).

Of most concern here will be environmental issues of broad interest and media coverage, such as climate change, EPA budget and enforcement activities, lead poisoning and contaminated drinking water. At the same time, as candidates vie for visibility, pesticide regulation or controls on toxic chemicals could emerge as a campaign issue (for example, presence of legacy perfluorinated chemicals in drinking water in some parts of the country such as Iowa or New Hampshire).

Strap On Your Seat Belt

We could be in for a bumpy, if not eventful, year. And all of this — party control of Congress, EPA controversies, Presidential ambition of more than a dozen U.S. Senators — is a subset of the global issues surrounding regulation of pesticides and toxic chemicals on the world stage. Here is a detailed summary of our forecast of global developments in the chemical space.

LYNN L. BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at [email protected]

Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006). The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.

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