Tuesday, October 28, 2003

U.S. and Europe: Can't We All Just Get Along?

I’ve written now several times about the REACH (most recently here), the European Union's efforts to reform chemical policy, and the opposition to these changes from the American chemical industry and the U.S. government. Now, as involved citizens, I think it’s necessary for all of us to help our European friends understand the American position on all of this.

First, in the way of background, a little good and a little bad news. The most recent bad news is in this October 24, 2003 Wall St. Journal article (for which I have no link):
European Union officials significantly narrowed the scope of a proposal to test tens of thousands of chemicals for health and environmental hazards, lowering the estimated cost of the measure by billions of dollars.

The move by the European Commission, the EU's executive arm, comes amid a lengthy and aggressive campaign against the proposed measure by President Bush's administration and the chemical industry.
The good news is:
Despite the changes, the U.S. government and the chemical industry remain critical of the proposed measure, which shifts responsibility for testing to manufacturers from government and requires registration and authorization for thousands of high-use chemicals. U.S. policy permits the use of about 30,000 chemicals that predate testing requirements under the Toxic Substances Control Act of 1976….Commerce Secretary Don Evans called the latest draft a serious blow to the chemical industry.
The changes, according to the Journal:
The final draft, for now, excludes chemical products known as polymers. In addition, if less than 10,000 metric tons of a chemical is produced world-wide, it would be subject to less scrutiny, a change that affects as many as two-thirds of all chemicals. The proposal also relaxes requirements for companies that use intermediaries, or chemicals to make other chemicals, and allows manufacturers some confidentiality surrounding the data that testing may yield.

Environmentalists say the proposed measure still restricts dangerous chemicals and places the onus for safety on industry. But they accuse the commission of creating loopholes to satisfy the Bush administration.
So, as I said, we need to help our Euro-buddies understand why our government and our chemical industry (without whom, life itself would be impossible) think the way they do.

First a speech by U.S. Ambassador to the EU Rockwell A. Schnabel
Many of the conflicts that exist in the economic relationship between the United States and the European Union are rooted in divergent regulatory approaches, says U.S. Ambassador to the EU Rockwell A. Schnabel at a Sept. 15 conference on “Understanding Chemical Control Policies: International Perspectives” in Stockholm, Sweden: “These divergences often arise from different attitudes about risk and safety, and the respective roles of governments and private actors in minimizing the former and maximizing the latter,”.

Let's look at the real meaning of some of this diplomat-speak:

"Different attitudes about risk and safety": Schnabel explained what this means before: “European regulators did not take enough business input into their decisions and that they were concentrating too much on environment and health at the expense of growth and trade.”

"Respective roles of governments and private actors in minimizing the former [risk] and maximizing the latter" [safety]: In the U.S., affected industries spend tens of millions of dollars on lobbying and advertising to persuade lawmakers that regulation restricts the free market and hurts American businesses, and therefore, jobs. American businesses also give huge sums of money to candidates as campaign contributions. According to a recent conversation I had with a European diplomat, this process would be considered bribery in his country, but in the United States it's considered “being accountable to the public.”

And don’t let the ongoing American corporate scandals scare you off. American businesses really know what’s best for you.

OK, now that that’s clear, let’s move on
The big danger in all of this, of course, is that an economic relationship on the scale of the U.S.-EU relationship simply can’t afford to get bogged down in these regulatory divergences. Even if our regulatory policies are not explicitly designed to disrupt trade, differences in regulatory approach can all too easily result in trade problems. And that’s not good for our relationship, nor for the 8 to 10 million people on both sides of the Atlantic whose jobs depend on transatlantic trade and investment.
"Differences in regulatory approach can all too easily result in trade problems." This one’s easy. If you all don’t shape up, two words: Trade war

OK, now we’re going to get a bit more sophisticated:
The role of science in the development of regulatory policy is also a major issue. We are particularly concerned over the threat that the EU' s expansive use of "precaution" poses for the principle that risks need to be carefully assessed on the basis of sound science. (emphasis added)
And then there’s this by Charles P. Ries, Principal Deputy Assistant Secretary Of State For European And Eurasian Affairs:
Earlier this year, the Commission unveiled its first draft proposal that, to put it plainly, was riddled with problems. First of all, it was grounded on their problematic "precautionary principle" instead of science-based risk assessment.
Let's look at some more definitions.

Precaution: (1) Not assuming that chemicals are innocent until proven guilty through sickness, death and environmental degradation (2) Not assuming that chemicals are “safe” just because they were in use before the passage of the Toxic Substances Control Act. (3) Paying up front to prevent health effects and environmental damage, instead of paying much more later to clean up the environment and bring people back to life (oh, never mind.)

Sound Science: There’s more to these two words than I have time to deal with here. Basically, the words “sound science” mean ignoring, changing, or selectively using science to fit industry’s political objective, generally to defeat or reverse environmental and public health and safety rules and protections.(See here and here and here for more). In other words, “sound science” is what the industry can use to undermine regulations, as opposed to “junk science” which is what all current and proposed workplace safety, environmental and public health regulations are based on.

The sound science argument is not just used in the chemical debate. It was also a favorite among the anti-ergonomics wingnuts. This from a National Coalition on Ergonomics fact sheet.
MYTH: "Ergonomic programs in individual companies are working; thus an ergonomic standard will work."

FACT: There is a huge and unbridgeable gap between anecdotal evidence and a sound scientific foundation. Individual companies are well positioned to study and determine what works for their employees. However, anecdotal examples do not support imposition of a regulation across an entire economy. Absent sound scientific evidence, OSHA cannot extrapolate from these isolated examples to a national rule.
And this from a speech by NCE spokesperson Laurie T. Baulig
We are not "the just say no" coalition. What we oppose is an ergonomics standard that is not science-based. After all, any standard that does not have sound science behind it cannot achieve its intended objective of reducing workplace injuries and illnesses...morning. At this time, the science simply does not exist to regulate ergonomics.
What seems to be missing from this analysis is that fact that the science behind ergonomics was not only voluminous, but backed by major literature reviews by the National Institute for Occupational Safety and Health and twice from the National Academy of Sciences.

"Whose jobs depend on transatlantic trade and investment" This can be summed up in two more words – and listen up labor unions: Job Blackmail

Ok, enough seriousness. Now it’s time for a little comic relief, courtesy of “Rocky” Schnable:
And let me emphasize here parenthetically how important it is – as we develop standards which protect consumers at the lowest cost to our producers - that we work in international organizations such as the WTO to ensure that developing countries, especially China, also adhere to these standards, bear the same costs and level the playing field.

One word should do for this one: Bwa ha ha ho heh he snort – wait, let me catch my breath – ho ha ha hee hee, ho! Hee, hee… Oh, Rocky, what a card! You slay me!

One more
We are committed to engaging to share our own experiences with chemical regulation in ways that we hope will be constructive.
Translation: Our experience with chemical regulation is that: (1) We have regulations that are almost completely ineffective and we like it that way, and (2) We have intimidated the Democrats out of even talking about more effective workplace safety or environmental regulations. That’s our experience and we're trying to "share" it with you. Deal with it.

More from Assistant Deputy Secretary Ries
As such, it [REACH]effectively shifted the burden of proof for industry to unworkable levels. Just as importantly, it would have required testing all new and existing chemicals, to even those that have been in everyday use for decades, and it would have imposed these testing requirements even on downstream users of chemicals.
"Even those that have been in everyday use for decades:"OK, students of the Toxic Substance Control Act, what strikes you here? Tick tock. Time's up. Yes, Johnnie, you’re right. You’ve clearly been reading past issues of Confined Space. You knew that when TSCA was passed, it “grandfathered” in chemicals in commerce prior to December 1979, which still make up 99% by volume of all chemicals used in the United States today. These chemicals are considered safe unless the Environmental Protection Agency can demonstrate that they present an “unreasonable risk” to human health and the environment on a chemical by chemical basis.

Finally, to bring all parties together, European Commission Delegate Gerard Depayre stated at a recent Congressional hearing his fervent hope that
A solution to both these problems can only be reached through dialogue and close cooperation between regulators. The ideal result of such a dialogue should be to arrive at harmonised regulations. Failing this, efforts should be made to ensure maximum convergence of regulations on both sides of the Atlantic which makes possible the mutual recognition of equivalence of regulations
To which Gary Littman of the U.S. Chamber of Commerce graciously responded
We have no intention to advocate the importation of the European regulatory practice in the U.S. Nor do we wish our problems on our European partners. The business community is not advocating the creation of supranational regulators for the Transatlantic market. Our goal is to rid this market of duplicative or incompatible rules.

It is up to the U.S. Congress and its counterparts in Europe to both compel and enable regulators to cooperate
Yeah, and the horse you rode in on!

Translation: You can take your "convergence" and "harmonization" and shove it up your )*&*(). It's our way or the highway. You've got a problem with your enviro-green-weenies and your corporate concern for society, we've got our own enviros and the plague of trial lawyers. You need to control your own brats. We've managed to control the runaway regulators in this country and you need to do the same if you want good trade relations with us.

So there.