The Canary in Donald Trump’s Literal Coal Mine

This election season, the central concern of American environmental politics has been the future of the country’s climate and energy policies. Political divisions over coal, climate change and government regulation are likely to intensify with Donald Trump’s nomination of Scott Pruitt, who has rejected the scientific consensus that human actions are responsible for climate change, to head the Environmental Protection Agency—the very agency that Pruitt, as Oklahoma’s attorney general, has sued to prevent it from enforcing regulations. The nominations of Exxon CEO Rex Tillerson as Secretary of State and former Texas Governor Rick Perry as Secretary of Energy will likely add fuel to the fire.

However, at least one environmental policy enjoys strong bipartisan support, as well as the endorsement of both the chemical industry and environmental and public-health advocacy groups: the Lautenberg Chemical Safety Act. The fate of the Lautenberg Act will be an early sign of the prospects for any cooperation in the near future of American environmental politics. Call it the canary in the coal-fired power plant.

On Nov. 30, 10 senators wrote to Vice President-elect Mike Pence, urging the incoming administration to prioritize the implementation of this new law. The letter’s signatories include such unlikely allies as Massachusetts Democrat Ed Markey and Republican James Inhofe from Pruitt’s home state of Oklahoma. Inhofe has called the link between human activities and global warming “the greatest hoax ever perpetrated on the American people,” and Markey once suggested that global warming deniers start their own country on an iceberg. But they are united in support for the robust implementation of this chemical safety law.

From the water crisis in Flint, Mich., to the chemical spill that left hundreds of thousands of West Virginians without water in January 2014, chemical hazards affect the health and well-being of millions of Americans. The Lautenberg Chemical Safety Act is a revision of the Toxic Substances Control Act, one of the principal statutes by which the EPA assesses and controls such hazards.

The original Toxic Substances Control Act (TSCA) provides a cautionary tale in how the achievements of legislative compromise can break down in their implementation. Passed in 1976 in the waning days of the Ford administration, the act was to extend an umbrella of safety over the chemicals in use in America that were not already addressed by clean air, clean water and occupational health laws. The EPA had barely finished developing the apparatus to enforce the law when the Reagan administration de-prioritized and de-funded it. In one signature case, during the late 1980s, the EPA sought to phase out the use of asbestos in the U.S. under the provisions of TSCA, but a federal court ruled that the asbestos ban did not constitute the “least burdensome” mechanism of enforcement mandated by the law.

After the asbestos ban foundered, environmental and public health advocates shifted their political efforts to the states. State legislatures took action, creating a patchwork of chemical regulatory regimes across the U.S. The resulting situation was not especially satisfying to anybody. EPA scientists and administrators chafed against the limitations of TSCA, environmental and public health advocates were appalled at lax federal oversight, and corporations found state-by-state chemical regulations cumbersome and expensive.

Around 2010, a combination of current and former EPA scientists, consumer health advocates, environmental groups, chemical industry representatives and legislators from both parties (especially the late New Jersey Senator Frank Lautenberg, for whom the final bill was named) began pushing for reform. Over years of negotiations, stakeholders worked out compromises to prioritize and fund the evaluation of new chemicals and potentially hazardous existing ones, to allow safety to outweigh economic impact when warranted, to protect vulnerable populations and to smooth out the regulatory landscape by permitting federal safety determinations, once completed, to preempt state laws. In the summer of 2016, the Lautenberg Act passed Congress by overwhelming majorities and was signed into law.

On Nov. 29, the EPA issued a list of the first 10 “high-priority” chemicals for expedited safety assessments under the Lautenberg Act (the list includes asbestos), which sparked the letter from Inhofe, Markey and their Senate colleagues.

How the Trump administration and its new EPA leadership respond to this call has serious consequences for the protection of the environment and public health, for public confidence in government and for providing private industry with a clear road map of chemical hazard and regulations, which could incentivize firms to develop and use safer alternatives.

The Lautenberg Act could also provide a roadmap for environmental politics in the near future. Since the election, many observers have predicted a shift away from federal regulatory efforts towards state and local government action. In the case of the Lautenberg Act, state-level lawmaking catalyzed the emergence of a bipartisan coalition that developed legislation on the national level.

Yet the law’s future is uncertain. While President-elect Trump has called attention to political and regulatory failures in Flint, he has also expressed skepticism regarding certain generally recognized chemical hazards, including asbestos. In Oklahoma, Pruitt fought EPA regulations that targeted emissions of mercury and other toxins. If the bipartisan canary of the Lautenberg Act ends up expiring, the near-term prospects for environmental protection and environmental politics in America would appear dim indeed.