The chemical industry has always understood the need to keep regulatory watchdogs on a short leash. They intimidate the regulators, sow seeds of uncertainty, and wear them down. They value access holding private meetings with the EPA or state agencies, sometimes using surrogates or front groups. Some of the most effective attacks come from industry’s allies in academia and government. “Often these industry allies occupy positions within the bureaucracy or on outside advisory boards where they can apply heavy pressure on regulators.” The notorious revolving door is perhaps the industry’s most effective weapon. Chemical companies pay travel and lodging expenses for EPA employees, offer them future jobs in industry, and encourage former industry employees to take government jobs. Making friends in Congress and state legislatures is also an indispensable tool for confounding the regulatory process. Predictably, Texas congressmen offer some of the richest examples in the book. During the 1989 budget debate, El Paso Congressman Kika de la Garza organized the opposition to an effort to eliminate lucrative pesticide indemnification. \(When it bans a product, EPA must payi.e., “indemnify”chemical companies for their the industry-friendly position that indemnification was actually an environmental program. ‘The federal government ought to buy up banned pesticides,’ he said, ‘so that the farmer does not dump the suspended pesticide in the nearest creek, so that the retailer does not take it to the city dump.'” In fact, no farmer had ever asked for indemnification, but according to Oklahoma Congressman Mike Synar, “manufacturers had reaped millions of dollars from the program.” The authors attribute much of this congressional cooperation to substantial campaign donations by the chemical industry. Junkets provide another tool for industry access. In 1992, West Texas Democrat Charles Stenholm “took six industry-financed trips and collected $3,200 in speaking fees from those interests. Stenholm pushed unsuccessfully for an amendment that would have given manufacturers the right to sue the EPA for damages if the agency banned a pesticide capriciously….” Just the threat that industry might get Congress to intervene in regulatory matters can paralyze regulators. In 1994, the chemical industry persuaded Fort Worth Congressman Martin Frost to intervene when the EPA considered releasing a study advising the public of the dangers of perchloroethylene, and noting that viable alternatives are available. Dow Chemical convinced small dry cleaners that release of the study would destroy their industry. After a misleading industry position paper was distributed to members of Congress, four congressmen including Frost requested a meeting with top EPA officials, and pressured them not to release the study. Frost subsequently received significant campaign money from dry-cleaning sources. Creating legal loopholes has also slowed regulatory progress. Under the Clean Air Act, for example, allowing “maximum available control technologies” in dry-cleaning and other industries meant the acceptance of emissions reduction equipmentinstead of much more effective source removal. Demanding socalled “cost-benefit” provisions in environmental laws has been an especially successful strategy. A 1991 federal court ruling that EPA had not met the cost-benefit test for products containing asbestos makes it unlikely the EPA will ever try to ban anything again. The chemical industry tried to use the Republican Contract With America to further entrench cost-benefit analysis. House Speaker Newt Gingrich derided the EPA as a “job-killing agency,” while former Houston exterminator and Majority Whip Tom DeLay branded it a “Gestapo agency.” When the publicincluding Republican votersreacted negatively to this direct attack on environmental protection, Republicans instead emphasized making the environmental system more industry-friendly. The long arm of the chemical industry also reaches deep into the judicial system. The first step in denying justice for chemical injuries is to make it difficult for people to discover that chemicals are making them sick. “Chemical manufacturers fight to smother the horror stories that rise like brush fires and illuminate the damage resulting from their products. The victims who do break through the silence can expect to be beaten backfirst with skepti cism, then, perhaps, with money, and, if all else fails, with stinging personal attacks.” Court records are routinely sealed, in order to keep chemical injury out of public view and to deny other injured parties access to information that would allow them to successfully pursue their claims. Getting to court is almost impossible, because it is difficult to establish causation for the long-term health effects characteristic of chemical injury. “The sophisticated epidemiological studies that might prove such links are expensiveand industry, for obvious reasons, is not eager to bankroll them.” It is almost impossible to provide sufficient evidence that a company’ s product specifically caused the injury. By the time test samples are taken for evidence, they are likely to show the chemical to be “within EPA guidelines,” completing a circle of defense created in the regulatory system. Manufacturers have interpreted environmental provisions known as “preemption clauses” so broadly that injured parties cannot sue under traditional common-law theories, such as failure to warn, negligence, design defect, or breach of warranty. “Every time the EPA approves a label for a pesticide, the industry argues, it has, in effect, assumed the liability for any damage that a product might someday cause.” On the PR front, preemptive chemical strikes in the press have become a normal way of doing business. “Coping with public relations crises has been a central obsession of the industry ever since the publication of Silent Spring….” When major reports that could be damaging are scheduled for publication, industry flacks present the industry spin first, or utilize diversionary tactics. During the 1993 Mississippi River flooding, Monsanto gave flood victims $1 million and promised additional matching funds. Press coverage of this munificence overshadowed evidence that the flood had also brought record levels of herbicide contamination to drinking water all along the Mississippi. Public relations efforts regularly include the use of “covertly orchestrated” front organizations to create a “grassroots” constituency for the chemical companies. “Farmers, for example, are told again and again that pesticides are as essential to their prosperity as rain and sun. Chemical AUGUST 29, 1997 26 THE TEXAS OBSERVER
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