Legislative Review

The first session of a new Congress is always a time of high expectations and ambitions, and the first year of the 111th U.S. Congress was no different. With President Barack Obama pledging change, Congress actually got off to a quick start on some issues of importance to the chemical community.

The most significant was the passage of the President’s American Recovery & Reinvestment Act in February. The $790 billion package of tax cuts and federal stimulus plans included more than $17 billion for R&D. The National Institutes of Health was the big winner, receiving a boost of $10 billion; the National Science Foundation received $3 billion; the Office of Science at the Department of Energy got $2 billion; and the rest was scattered among several agencies.

The stimulus money was a boon to science agencies that had been struggling with little or no increases in funding for several years. It also helped take the edge off the perennial problem of Congress not passing a federal budget on time, as has happened again this year. Congress did not pass the final budget for last year, fiscal 2009, until March of this year and has passed only about half the required appropriations bills for fiscal 2010, which started on Oct. 1. An omnibus spending bill for the remaining agencies (except the Defense Department) has passed the House of Representatives and the Senate and will be signed by Obama.

Other important bills are making their way through the legislative process, including revision of the Chemical Facility Anti-Terrorism Standards, rewrite of the three-decades-old Toxic Substances Control Act (TSCA), and legislation for reducing carbon dioxide emissions to mitigate climate change.

The chemical facility regulations were due to expire in October, but Congress passed a yearlong extension because it couldn’t decide on a new law. The debate centers on whether the government can require chemical plants to use what are considered safer technologies, whether citizen lawsuits over noncompliance with the rules should be allowed, and whether state and local governments can adopt laws that are stricter than the federal law.

Almost all chemical companies and business groups oppose these provisions, but the House included them in the Chemical & Water Security Act it passed in November. That bill also directs the Department of Homeland Security to set up different standards and procedures for academic labs as opposed to industrial facilities. Next year, attention will focus on the Senate, where industry may have more luck in getting some changes made to the bill.

Concerns raised about people’s exposure to hazardous chemicals, particularly endocrine disrupters, are what spurred action on TSCA. Hearings in the House began in February, but no formal bill has been introduced. Environmental and safety groups and some members of Congress want the law revised to make it much easier for the Environmental Protection Agency to ban chemicals from commerce if they are deemed unsafe. They also want chemical companies to submit more toxicity data to EPA when seeking to use a new chemical in a product. Industry groups are split on some of the measures being discussed, but most do not want a U.S. version of the European Union’s law on Registration, Evaluation, Authorization & Restriction of Chemical substances (REACH), which is heavily prescriptive and costly.

Congress continues its great debate over a law that would require the U.S. to reduce its emissions of greenhouse gases. The House passed a 1,200-page bill in late June that prescribes a cap-and-trade system that it claims will reduce CO₂ emissions by 83% from 2005 levels by the year 2050. The House measure also cuts the use of hydrofluorocarbons, which are used as alternatives to ozone-depleting refrigerants.

The legislation, however, has become mired in the Senate. Economic costs, jobs lost or created, and allocation of emissions allowances are all problems being grappled with. Still, Senate Majority Leader Harry M. Reid (D-Nev.) has promised to meld the work of six committees into a single bill for floor debate soon.

In addition to these measures, Congress has some lower profile bills in the works that impact chemical business and research. Legislation that would repeal the freight railroad industry’s exemption from federal antitrust laws is nearing passage. The chemical industry has been pushing for this because it believes the current law has resulted in unfair rates and unreliable service.

A bill to overhaul how the Food & Drug Administration regulates food safety is moving through the House. The bill would require FDA to increase the frequency of safety inspection, do more laboratory testing, and charge food companies a $500 annual fee to pay for the program. It would also have FDA do yet another review of the safety of bisphenol A in food and beverage containers.

A long-running effort on patent reform made some progress this year: A bill was approved by the Senate Judiciary Committee. Among other things, the measure is supposed to make it harder for patents to be challenged. House members are struggling with their version of this bill, and despite many pleas that patent reform is urgently needed, the legislation is sure to be continued into next year.

Congress worked hard to pass difficult laws this year and had modest success. Most of the heavy legislative lifting, so to speak, has to be done in this first session because next year is an election year, and the impetus will change as members, particularly House members, turn their attention to reelection and not legislation.