Law for Sustainability
Lady Liberty image License: CC0 Public Domain by Petr Kratochvil Although many – like Joe Biden - would like the country to choose its leaders based on the likelihood that they will carry out the right policies for us, it seems that often we choose them because of who they are or seem to be. Some like Trump because of his old tv show or his book about making deals, or because he says things they’ve been keeping to themselves. Some said they’d rather have a beer with George Bush than Al Gore. Some voted against Michael Dukakis because he looked silly in a tank. That Al Gore did in fact deserve much credit for us having the internet now, and Dukakis was considered the best governor in the country at the time, didn’t matter as much as the stories about who they were that got through to enough people. We are in a war of stories. A professional in that field, producer Armando Iannucci, hounded by the press for comment on the similarity of true events to his series “Veep”, warned in the New York Times today that “The stuff happening out there is madder than “Veep” and deadly serious.” We need to restore the primacy of reality.
We (environmental citizens, everyone) absolutely need leaders who have a grip on reality – Mother Earth is whacking us upside the head to make us pay attention, wars are breaking out that need discouraging and prevention, threats to democracy, privacy, our money, AI, viruses, etc. But in an age in which fantasy plays such a large role so quickly we also need people who can reach those people who don’t search out the facts, but who choose between narratives that they hear, and we need to support the development of that energy by asking for it and appreciating it when we get it.
Right now Kamala Harris is injecting something akin to Truman’s Happy Warrior, JFK’s vim and vigor, Obama’s electricity and her own great laugh. She rides into town like the new sheriff on a real horse of experience, ready to face problems. When Massachusetts governor Maura Healy introduced Harris to “a friend’s young daughter, who had been at basketball camp, Harris said,
"Tell me about basketball camp, and what’s your favorite position?’…And the little girl says to her, ‘Anything but defense’. And the V.P. just burst out laughing and said, ‘Me too. I like offense.’”
(New York Times today).
We (environmental citizens, everyone) absolutely need leaders who have a grip on reality – Mother Earth is whacking us upside the head to make us pay attention, wars are breaking out that need discouraging and prevention, threats to democracy, privacy, our money, AI, viruses, etc. But in an age in which fantasy plays such a large role so quickly we also need people who can reach those people who don’t search out the facts, but who choose between narratives that they hear, and we need to support the development of that energy by asking for it and appreciating it when we get it.
Right now Kamala Harris is injecting something akin to Truman’s Happy Warrior, JFK’s vim and vigor, Obama’s electricity and her own great laugh. She rides into town like the new sheriff on a real horse of experience, ready to face problems. When Massachusetts governor Maura Healy introduced Harris to “a friend’s young daughter, who had been at basketball camp, Harris said,
"Tell me about basketball camp, and what’s your favorite position?’…And the little girl says to her, ‘Anything but defense’. And the V.P. just burst out laughing and said, ‘Me too. I like offense.’”
(New York Times today).
In Joe Biden’s last debate he seemed to be overwhelmed by the onslaught of Trump’s lies. He shook his head in disbelief and said he’d never heard such malarky. Kamala Harris’s reaction to Trump has already been that of one who has long been in the mode of responding to such things swiftly and surely, as enforcement must be conducted. This country has been knocked back on its heels by the all-fronts attack on our institutions and norms that the Republicans have mounted now, in growing and worsening ways, for many years. We don’t want an offense that looks like them, or we will cement the damage they’ve done. Instead, restoration is possible with this uplift, this firm tone, this ability to make a case and communicate it. This is not new but old, the original intent, as when the authors of the Declaration of Independence explained themselves to the world “out of a decent respect for the opinions of mankind”, and it is the principle embodied in the processes of law and effective representative government. Harris respects our intelligence and will explain why she believes what she believes: setting both a much-needed mood of inclusion, and reminding us of our traditional, constructive mode of politics, the one that works, and which contrasts nicely with the insulting public discourse of the Republicans. It’s a relief to see it!
I write to add that Kamala Harris has played great defense as well. The accounts of her work include that as San Francisco DA she defended the idea of life itself when she would not seek the death penalty for a cop-killer, despite intense political pressure. As DA she defended the rights of victims, as AG she defended the rights of homeowners, as VP she defends the rights of women – these are well known. I have not yet seen her get credit for defending the right of a state to protect its people from unnecessary toxic poisoning. That is how I first learned her name and hoped she would progress in national politics.
It was largely her doing that Massachusetts still has one of the best environmental laws ever, the Toxics Use Reduction Act, and that Washington and Maine can keep their laws restricting the sale of children’s products that have toxics in them, and that California can keep its Proposition 65 which informs people about the presence of carcinogens, so they can protect themselves. All the laws that states have passed that go beyond the federal law, have been protected from being wiped out, because she rounded up other AGs to work with her to prevent that.
Ironically, one of the least known and weakest environmental laws is also the most potentially powerful of them. The Toxic Substances Control Act (generally referred to as “Tosca,” like the opera), provides EPA with the authority to do pretty much whatever is necessary to address unreasonable risks from the use of toxics. It was considered a gap-filling statute, passed because the Clean Water and Clean Air and other acts were not getting to the root of the problem of pollution: the decision to use toxics.
However, because of the Corrosion-Proof Fittings Case,[i] when EPA was instructed that it had to determine the least burdensome method of addressing the risks from asbestos, EPA has had trouble using those powers. Though EPA had worked on its rule for years, reviewed a hundred studies and found the harm of asbestos uses had been well-established, the court found it had not gathered enough evidence to show the harm outweighed the economic impacts on industry. We see here a pattern that gets repeated to the detriment of environmental progress in many court decisions: a need for proof that the least possible interference with business has been built into regulatory action, a standard of proof of harm that is like a criminal standard (beyond a reasonable doubt), and a neglect or downplaying of the responsibility of the court to find a way to honor the intent of the statute and to lessen the harm that victims of pollution and contamination are experiencing.
In this case Congress’s broad grant of powers to EPA – to fine, to require reporting, to ban, and anything in between necessary – was turned against the agency. The court wanted to see a cost-benefit analysis performed for each option, to meet that protecting harm to business principle they made more sacred than protecting people – in order to make sure the least burdensome method is chosen. EPA has never been funded sufficiently to do its basic work, much less conduct so much analysis each time it wants to use the powers of TSCA.
There were a small number of manufacturers who benefitted from this concern, while many people have been harmed by asbestos and the fact of its toxicity has been well-established. Melanie Benesh and Thomas Cluderay wrote for the Environmental Working Group in 2016 that
Corrosion Proof Fittings, and the cost requirements it saddled EPA with, paralyzed the agency’s efforts to address chemical safety. In the more than two decades since that decision, EPA has only attempted to regulate a handful of chemicals out of the tens of thousands on the market.[ii]
As a result of this stifling of the federal anti-toxic law some states then took the lead in passing legislation needed to protect citizens from unnecessary poisoning. The industry then turned its focus to fighting state laws. At the time there was an emphasis on pollution prevention (P2), and every state had a program, some just helping companies find safer alternative processes and materials, and some with requirements that companies report on toxics use or demonstrate they were trying to reduce that use. These laws, and related efforts such as Environmentally Preferable Purchasing, were very successful at reducing sales of dangerous chemicals and products containing them. The National Pollution Prevention Roundtable published a study in 2003 that found that the state P2 programs, though small, had reduced more than 167 billion pounds of toxics use during the 1990’s.[iii] The Massachusetts Toxics Use Reduction Act (TURA) was shown not just to have reduced hundreds of millions of pounds but to have brought about significant economic benefits for the majority of companies regulated by the act.[iv]
The Chemical Manufacturers Association (now the American Chemistry Council), funded a state group in Massachusetts (we checked the incorporation papers) that mounted constant attempts to repeal TURA, to contest our decision-making, and to spread disinformation about us. (The effort to get rid of our program has had an impact – the program is much reduced – but it still exists).
After the environmentally-concerned New Jersey Senator Frank Lautenberg died in 2013, Republicans pushed a bill to reform TSCA which contained provisions to preempt state laws on toxics. It would have wiped out our valuable TURA.
I remember reading that when the preemption provisions were read aloud in the now Republican-dominated House, that there were cheers. I remember reading the Republican version of “reform” and thinking that it was cleverly designed to look like it was addressing long-held concerns about TSCA – that TSCA only concerned new chemicals and failed to assess the risks of existing chemicals, a big problem – but thinking that EPA would not be able to use these provisions if the House continued to underfund it, and industry continued to sue over every step it took.
Unfortunately, it seemed that some environmentalists, who had long wanted reform, were taken in by the Republican offers. Panicking, I began to talk up the matter in various networks. Many in the pollution prevention world, however, did not know about TSCA, as it had been rarely used even before the Corrosion-Proof Fittings case. A few years before EPA had queried states on whether they wanted to have access to TSCA data gathered by the federal government and I had to make a bit of noise to get our own state to say yes, indeed we do! TSCA was a shadowy presence and the idea of preemption, well, that didn’t seem to be before people’s eyes either. I was not making much progress.
At this time, when I was wracking my brains at my desk every day, among other responsibilities, to think about what I could do to raise concerns about the Republican plot to destroy our fantastic law and all the other great state laws making our world safer, Kamala Harris suddenly appeared. I had never heard of her before I learned that she was leading an effort to organize state Attorneys General to protest the preemption provisions of the TSCA reform bills being discussed.
In January 2016, she rallied other AGOs to stand with her as she said: “As Congress moves closer to reforming the Toxic Substance Control Act, it is critical that states' ability to protect communities from toxic chemicals is not preempted.”[v]
I didn’t know who this lady was, though I knew that California had a lot of toxics law to protect. When a reconciled bill was passed, it did not wipe out the precious laws that were doing so much to protect citizens from being harmed. Yay!
But don’t think the job is done. TSCA now effectively prevents states from enacting new ones that substantively go beyond the federal law. That leaves those of us who don’t like being poisoned unnecessarily with the option of either getting that preemption more completely lifted, so that states can go further in protecting their citizens than the federal government goes, or making the federal law work as it should. Our chances for either, (or both, preferably) are better with a president who has the right stuff and understands what it is for.
[i] Fifth Circuit Court of Appeals, 947 F.2d 1201).
[ii] https://www.ewg.org/news-insights/news/legal-experts-supreme-court-decision-mercury-pollution-could-undercut-chemical
[iii] https://www.csu.edu/cerc/researchreports/documents/AnOunceOfPollutionPreventionIsWorth2003.pdf
[iv] The Program Evaluations contracted to Abt Associates by the Toxics Use Reduction Institute showed this consistently, as well as the reports by the Massachusetts Department of Environmental Protection and the Massachusetts Office of Technical Assistance. The requirement to provide toxics use reporting data allowed for the analyses that showed the effectiveness of P2 programs. See, for example: Program assessment at the 20 year mark: experiences of Massachusetts companies and communities with the Toxics Use Reduction Act (TURA) program, Rachel I. Massey, Journal of Cleaner Production, Volume 19, Issue 5, March 2011, Pages 505-516, https://www.sciencedirect.com/science/article/abs/pii/S0959652610003264; or The Effect of Providing On-site Technical Assistance for Toxics Use Reduction, Executive Office of Environmental Affairs, Commonwealth of Massachusetts, https://www.mass.gov/files/ota_effectiveness_study_final_2006.pdf, and see OTA and TURI case studies as well as the case studies of publications of many other state pollution prevention programs.
[v] https://www.oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-and-11-attorneys-general-urge-limiting
I write to add that Kamala Harris has played great defense as well. The accounts of her work include that as San Francisco DA she defended the idea of life itself when she would not seek the death penalty for a cop-killer, despite intense political pressure. As DA she defended the rights of victims, as AG she defended the rights of homeowners, as VP she defends the rights of women – these are well known. I have not yet seen her get credit for defending the right of a state to protect its people from unnecessary toxic poisoning. That is how I first learned her name and hoped she would progress in national politics.
It was largely her doing that Massachusetts still has one of the best environmental laws ever, the Toxics Use Reduction Act, and that Washington and Maine can keep their laws restricting the sale of children’s products that have toxics in them, and that California can keep its Proposition 65 which informs people about the presence of carcinogens, so they can protect themselves. All the laws that states have passed that go beyond the federal law, have been protected from being wiped out, because she rounded up other AGs to work with her to prevent that.
Ironically, one of the least known and weakest environmental laws is also the most potentially powerful of them. The Toxic Substances Control Act (generally referred to as “Tosca,” like the opera), provides EPA with the authority to do pretty much whatever is necessary to address unreasonable risks from the use of toxics. It was considered a gap-filling statute, passed because the Clean Water and Clean Air and other acts were not getting to the root of the problem of pollution: the decision to use toxics.
However, because of the Corrosion-Proof Fittings Case,[i] when EPA was instructed that it had to determine the least burdensome method of addressing the risks from asbestos, EPA has had trouble using those powers. Though EPA had worked on its rule for years, reviewed a hundred studies and found the harm of asbestos uses had been well-established, the court found it had not gathered enough evidence to show the harm outweighed the economic impacts on industry. We see here a pattern that gets repeated to the detriment of environmental progress in many court decisions: a need for proof that the least possible interference with business has been built into regulatory action, a standard of proof of harm that is like a criminal standard (beyond a reasonable doubt), and a neglect or downplaying of the responsibility of the court to find a way to honor the intent of the statute and to lessen the harm that victims of pollution and contamination are experiencing.
In this case Congress’s broad grant of powers to EPA – to fine, to require reporting, to ban, and anything in between necessary – was turned against the agency. The court wanted to see a cost-benefit analysis performed for each option, to meet that protecting harm to business principle they made more sacred than protecting people – in order to make sure the least burdensome method is chosen. EPA has never been funded sufficiently to do its basic work, much less conduct so much analysis each time it wants to use the powers of TSCA.
There were a small number of manufacturers who benefitted from this concern, while many people have been harmed by asbestos and the fact of its toxicity has been well-established. Melanie Benesh and Thomas Cluderay wrote for the Environmental Working Group in 2016 that
Corrosion Proof Fittings, and the cost requirements it saddled EPA with, paralyzed the agency’s efforts to address chemical safety. In the more than two decades since that decision, EPA has only attempted to regulate a handful of chemicals out of the tens of thousands on the market.[ii]
As a result of this stifling of the federal anti-toxic law some states then took the lead in passing legislation needed to protect citizens from unnecessary poisoning. The industry then turned its focus to fighting state laws. At the time there was an emphasis on pollution prevention (P2), and every state had a program, some just helping companies find safer alternative processes and materials, and some with requirements that companies report on toxics use or demonstrate they were trying to reduce that use. These laws, and related efforts such as Environmentally Preferable Purchasing, were very successful at reducing sales of dangerous chemicals and products containing them. The National Pollution Prevention Roundtable published a study in 2003 that found that the state P2 programs, though small, had reduced more than 167 billion pounds of toxics use during the 1990’s.[iii] The Massachusetts Toxics Use Reduction Act (TURA) was shown not just to have reduced hundreds of millions of pounds but to have brought about significant economic benefits for the majority of companies regulated by the act.[iv]
The Chemical Manufacturers Association (now the American Chemistry Council), funded a state group in Massachusetts (we checked the incorporation papers) that mounted constant attempts to repeal TURA, to contest our decision-making, and to spread disinformation about us. (The effort to get rid of our program has had an impact – the program is much reduced – but it still exists).
After the environmentally-concerned New Jersey Senator Frank Lautenberg died in 2013, Republicans pushed a bill to reform TSCA which contained provisions to preempt state laws on toxics. It would have wiped out our valuable TURA.
I remember reading that when the preemption provisions were read aloud in the now Republican-dominated House, that there were cheers. I remember reading the Republican version of “reform” and thinking that it was cleverly designed to look like it was addressing long-held concerns about TSCA – that TSCA only concerned new chemicals and failed to assess the risks of existing chemicals, a big problem – but thinking that EPA would not be able to use these provisions if the House continued to underfund it, and industry continued to sue over every step it took.
Unfortunately, it seemed that some environmentalists, who had long wanted reform, were taken in by the Republican offers. Panicking, I began to talk up the matter in various networks. Many in the pollution prevention world, however, did not know about TSCA, as it had been rarely used even before the Corrosion-Proof Fittings case. A few years before EPA had queried states on whether they wanted to have access to TSCA data gathered by the federal government and I had to make a bit of noise to get our own state to say yes, indeed we do! TSCA was a shadowy presence and the idea of preemption, well, that didn’t seem to be before people’s eyes either. I was not making much progress.
At this time, when I was wracking my brains at my desk every day, among other responsibilities, to think about what I could do to raise concerns about the Republican plot to destroy our fantastic law and all the other great state laws making our world safer, Kamala Harris suddenly appeared. I had never heard of her before I learned that she was leading an effort to organize state Attorneys General to protest the preemption provisions of the TSCA reform bills being discussed.
In January 2016, she rallied other AGOs to stand with her as she said: “As Congress moves closer to reforming the Toxic Substance Control Act, it is critical that states' ability to protect communities from toxic chemicals is not preempted.”[v]
I didn’t know who this lady was, though I knew that California had a lot of toxics law to protect. When a reconciled bill was passed, it did not wipe out the precious laws that were doing so much to protect citizens from being harmed. Yay!
But don’t think the job is done. TSCA now effectively prevents states from enacting new ones that substantively go beyond the federal law. That leaves those of us who don’t like being poisoned unnecessarily with the option of either getting that preemption more completely lifted, so that states can go further in protecting their citizens than the federal government goes, or making the federal law work as it should. Our chances for either, (or both, preferably) are better with a president who has the right stuff and understands what it is for.
[i] Fifth Circuit Court of Appeals, 947 F.2d 1201).
[ii] https://www.ewg.org/news-insights/news/legal-experts-supreme-court-decision-mercury-pollution-could-undercut-chemical
[iii] https://www.csu.edu/cerc/researchreports/documents/AnOunceOfPollutionPreventionIsWorth2003.pdf
[iv] The Program Evaluations contracted to Abt Associates by the Toxics Use Reduction Institute showed this consistently, as well as the reports by the Massachusetts Department of Environmental Protection and the Massachusetts Office of Technical Assistance. The requirement to provide toxics use reporting data allowed for the analyses that showed the effectiveness of P2 programs. See, for example: Program assessment at the 20 year mark: experiences of Massachusetts companies and communities with the Toxics Use Reduction Act (TURA) program, Rachel I. Massey, Journal of Cleaner Production, Volume 19, Issue 5, March 2011, Pages 505-516, https://www.sciencedirect.com/science/article/abs/pii/S0959652610003264; or The Effect of Providing On-site Technical Assistance for Toxics Use Reduction, Executive Office of Environmental Affairs, Commonwealth of Massachusetts, https://www.mass.gov/files/ota_effectiveness_study_final_2006.pdf, and see OTA and TURI case studies as well as the case studies of publications of many other state pollution prevention programs.
[v] https://www.oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-and-11-attorneys-general-urge-limiting
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