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U.S. Vote at Treaty Meetings Threatened

Legislation to make U.S. a partner in persistent organic pollutant pact mired in legal debate

by Cheryl Hogue
March 29, 2004 | A version of this story appeared in Volume 82, Issue 13

Congress is debating how the U.S. should implement a global treaty that will control the pesticide dieldrin and 11 other persistent organic pollutants.
Congress is debating how the U.S. should implement a global treaty that will control the pesticide dieldrin and 11 other persistent organic pollutants.

At first glance, the issue seems relatively simple. Republicans, Democrats, industry, environmental groups, and the Bush Administration all agree that the U.S. should become a partner in three international treaties controlling chemicals. For this to happen, Congress must pass legislation making minor changes to the federal laws governing commercial chemicals and pesticides.

Some squabbling over the particulars is to be expected in the development of any bill, even one on an issue that enjoys widespread support. But debate over how to implement these treaties has moved beyond simply hashing out the nuts and bolts of legislation. It has shifted into somewhat arcane legal arguments over what the U.S. Constitution allows--or doesn't allow--Congress to do. That dispute is slowing down passage of the legislation.

The longer this debate delays congressional action on the legislation, the more likely it is that the U.S. will have no vote on whether more substances get added to a global treaty controlling persistent organic pollutants (POPs). And the chemical industry dearly wants the U.S. to have and exercise that vote.

Though the issue seems straightforward on its surface, it involves three international treaties, two U.S. laws, and four congressional committees.

U.S. officials have signed the three pacts. Two of the accords place stringent controls on several POPs--one is global and the other is regional, covering North America and Europe. The third pact requires developing countries to give prior, informed consent before accepting shipments of certain toxic chemicals.

For the U.S. to become a full partner in the treaties, Congress must pass and the President must sign legislation that amends two federal laws to make them consistent with the provisions of the accords. The laws are the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA) and the Toxic Substances Control Act (TSCA).

The legal dispute focuses on how the U.S. will implement any international decisions to control chemicals that come through the global POPs treaty, called the Stockholm convention. That pact initially bans or severely restricts 12 substances or groups of substances: aldrin, chlordane, DDT, dieldrin, dioxins, eldrin, furans, heptachlor, hexachlorobenzene, mirex, polychlorinated biphenyls, and toxaphene. The accord also sets up a process for treaty partners to add more substances to that list.

Most environmental legislation travels through a single committee in the Senate and one in the House of Representatives. However, one committee in each chamber holds jurisdiction over FIFRA while a separate panel handles TSCA. Therefore, two committees in each chamber must adopt legislation implementing the three treaties before the measures are rolled together into a single bill for a floor vote.

The Senate Environment & Public Works Committee last year adopted legislation (S. 1486) amending TSCA to implement the three agreements. S. 1486 caused little controversy, though neither environmental groups nor the American Chemistry Council, which represents large chemical manufacturers, is completely satisfied with the resulting bill.

Congressional panels that have yet to address legislation to implement the treaties are the House Energy & Commerce Committee, which has jurisdiction over TSCA, plus the Senate Agriculture, Nutrition & Forestry and House Agriculture committees, which oversee FIFRA.

The Bush Administration in February proposed changes to FIFRA to implement the three treaties. One aspect of that draft bill has drawn the wrath of more than a dozen environmentalists, and it has raised concern at CropLife America, a pesticide industry group. Environmentalists are so alarmed that they are opposing the draft legislation while supporting U.S. participation in the pacts.

The Administration's draft FIFRA amendments are markedly different from S. 1486 in one respect--how the U.S. would respond as more chemicals are added to the Stockholm convention. S. 1486 would require the Environmental Protection Agency to provide notice--and accept public comments--at three different stages of the international process for proposing and adding commercial chemicals to the global POPs treaty.

ACC supports a process for allowing the public to comment on proposals to list additional chemicals under the Stockholm convention, says Michael Walls, senior counsel for the industry group. Environmental groups generally support the idea, though some believe that three comment periods may be excessive and could place too great a burden on the already stressed resources of EPA, says Glenn Wiser, a senior attorney with Center for International Environmental Law.

The Administration's draft FIFRA changes have a key difference--they do not require EPA to give public notice and accept comment when pesticides are proposed for control under the Stockholm convention.

Patrick J. Donnelly, executive director of CropLife America, says his group would have preferred a mandatory notice and comment period to ensure that industry's voice would be heard. "We have the data and stand by the products we provide," he says.

A coalition of 14 environmental groups is calling on Congress to "give EPA a clear mandate to publish notices and obtain information from the regulated industry at key stages of the international process, and to solicit public comments on proposed international actions and their possible implications for domestic policy." This would make the FIFRA amendments consistent with the TSCA provisions in S. 1486.

"We continue to encourage Congress to act quickly and effectively so the U.S. can be a full partner."

THE ENVIRONMENTAL groups aren't merely backing the pesticide industry's desire for required notice. They are challenging what they say is a legal theory espoused by some conservative groups--and one that the environmental groups see as a threat to the existing regulatory structure in the U.S., Wiser says. This argument holds that in delineating the separation of powers among the branches of government, the Constitution prohibits Congress from requiring EPA--or any executive branch agency--to take action in response to the decision of an international body.

But the U.S. has had laws that do just that for years, Wiser says.

For instance, when Congress amended the Clean Air Act in 1990, lawmakers included provisions to implement the Montreal Protocol on Substances That Deplete the Ozone Layer. If partners to the Montreal protocol agree to hasten the phase-out of ozone-depleting chemicals, the Clean Air Act requires EPA to issue regulations that are at least as stringent as the new international schedule, Wiser explains. Other U.S. laws that require the executive branch to act in response to decisions made by an international body are those that implement the Chemical Weapons Convention and the North American Free Trade Agreement, Wiser says.

Environmentalists aren't the only ones concerned about this legal theory.

Sen. Thomas Harkin (D-Iowa), top Democrat on the Senate Agriculture, Nutrition & Forestry Committee, addressed the issue in a February letter to EPA Administrator Michael O. Leavitt. In his letter, Harkin endorsed public participation and comment in the POPs listing process.

"It has also been asserted that if Congress required the agency to provide a notice and comment period based on the action of the international body, it would unconstitutionally impinge on our national sovereignty. This is a novel constitutional analysis that I would like to understand better," Harkin wrote. He asked Leavitt to provide a legal analysis supporting this proposition.

The Bush Administration has provided no written legal rationale as yet.

Wiser says this argument threatens passage of the bill implementing the three treaties. That possibility has industry worried.

Walls of ACC notes that the first meeting of partners to the Stockholm convention will take place in April 2005. The U.S. must have implementing legislation enacted by January 2005 for it to participate as a treaty partner. Otherwise, U.S. officials attending the meeting will have nonvoting "observer" status.

"We continue to encourage Congress to act quickly and effectively so the U.S. can be a full partner," Walls says. Donnelly of CropLife America adds, "We do want to be at the table."



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