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Re: February 25, 2004 EPA draft bill to amend FIFRA
Date: March 8, 2004
Our organizations appreciate EPA’s efforts to develop amendments to the Federal Insecticide, Fungicide, and Rodenticide Act [FIFRA] that would implement the Stockholm POPs Convention, LRTAP POPs Protocol, and Rotterdam PIC Convention. However, we note that, in the time between the EPA stakeholders briefing of October 16, 2003 and the EPA briefing held on March 3, 2004, public interest organizations were given no meaningful opportunity by EPA or the House Agriculture Committee to participate in the ongoing development of the draft bill. We believe that the text of the administration’s new draft suffers from that lost opportunity for consultation, and we have concluded that our organizations will oppose this bill if it is introduced in the House or Senate.
The new draft fails to address significant concerns we raised last fall concerning the Senate bill. Since last fall, our organizations have circulated three short papers that outline our response to earlier administration drafts of the FIFRA bill as well as our recommendations for how we believe FIFRA should be amended to implement the Stockholm POPs Convention fully. The latest of these papers is a fact sheet dated March 2004 endorsed by 18 U.S. environment and health NGOs and indigenous organizations. All three papers focus primarily on how the FIFRA amendments will implement the Stockholm Convention’s provisions for identifying and banning or restricting additional dangerous, persistent, bio-accumulative substances. While these papers list a number of technical issues raised by administration drafts, they make three fundamental points that, in our view, are essential for adequate implementation of the Stockholm Convention. Unfortunately, none of these fundamental points are addressed by the administration’s February 25 draft.
1. The implementing legislation must require EPA to regulate POPs and other persistent, bio-accumulative, toxic substances (PBTs) using FQPA’s health based standard of “reasonable certainty of no harm.” The overwhelming majority of human exposures to POPs and other PBTs are through our food. In amending FIFRA with the Food Quality Protection Act, Congress specifically addressed food-based pesticide exposures in an effort to better protect infants’ and children’s health and the health of all Americans. EPA should regulate all pesticides in food, including POPs that have been added to the Stockholm Convention, by revoking their legal tolerance levels unless the pesticide registrant can demonstrate that there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue. In contrast, the administration draft mandates inappropriate “cost-benefit analysis” and new, OMB-inspired “sound science” and “peer review” requirements intended to make it more difficult for EPA to protect public health and the environment.
2. Stockholm Convention decisions on additional POPs that are supported by the United States must provide the default option for domestic regulation of POPs. Because the international process for banning additional POPs will be a painstaking, multi-year, science-based one in which the United States will fully participate, decisions by the Stockholm Conference of the Parties to ban or severely restrict additional POPs should provide the basis for U.S. domestic regulation. But the administration draft does not require EPA to give any deference or weight whatsoever to the international POPs listing process when considering whether to review or cancel a POPs pesticide registration.
3. The U.S. regulatory process must parallel the international decision-making process. The FIFRA amendments should 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. The administration draft does not require EPA to do anything in response to the various steps of a Stockholm listing decision, even if the United States is engaged in and fully supports every one of those steps.
Regarding this third point, administration officials have stated–using a shifting legal rationale–that Congress is constitutionally prohibited from requiring EPA or any administrative agency to do anything that is triggered by the decision of an international body. This theory of an “international non-delegation doctrine,” advocated by a tiny faction of radical legal theorists, contradicts a well-established body of U.S. statutory law that implements important international agreements such as the Montreal Protocol on Ozone Depletion, the North American Free Trade Agreement, the Chemical Weapons Convention, and the London Ocean Dumping Convention.
Recently, the administration has offered a variant of its theory by claiming that, were Congress to require EPA to initiate notice and comment in response to a Stockholm POPs Convention new listing procedure, Congress would be impermissibly meddling with the president’s exercise of international treaty making powers. In reality, the purpose behind these theories is threefold: (1) to sever the linkages that have developed since the 1980s between U.S. domestic law and multilateral environmental agreements to
which the United States is a party; (2) to prevent Congress from using implementation of the Stockholm Convention to alter the way that pesticides regulation in the United States is presently conducted; and (3) to expand the powers of the President by claiming that Congress does not have the prerogative to mandate regulation for domestic public health and welfare in response to events that occur internationally.
We interpret the inclusion in the draft bill of a general duty for EPA to report periodically to Congress on the Stockholm Convention, coupled with the administration’s refusal to allow mandatory, real-time notice and comment in the bill, as the administration’s attempt to implement this fringe constitutional theory into law and, by doing so, to establish a precedent for its theory that can be used in the future. President Bush already used his signing statement for the Clean Diamonds Act this way last year, when he claimed that a mandatory duty in that Act would have “unconstitutionally delegated legislative power to international bodies.”
Because we do not wish to see the Stockholm implementing legislation used to further the administration’s radical constitutional theories, because we see mandatory notice and comment and provision of information by industry as a necessary component of this bill, and because the draft does not incorporate the fundamental points we believe are needed for effective implementation of the Stockholm Convention, we reject the administration’s February 25 draft.
Our groups stand ready and willing to work with the administration and Congress to enact legislation that fully implements the three international agreements. Ratification of those agreements, however, is not worth having if the result is severely flawed domestic implementing authority. There is still time to enact effective legislation that encompasses our core concerns and that allows the United States to ratify and participate fully in the Stockholm and Rotterdam initial conferences of parties. But that time is running out. We urge those involved in developing the administration’s proposed FIFRA bill to seriously consider a substantially modified approach.