New Power for 'Old Europe'
Under REACH, chemicals determined to be "carcinogens, mutagens or repro[ductive] toxins" would have to be taken off the market within a decade. According to the EPA's own standards, this could amount to as many as 1,400 chemicals. For other chemicals, REACH establishes several layers of testing for toxicity--with strictures that grow tougher as the quantity and risk increases. The proscriptions also apply to chemicals in manufactured goods: REACH encourages substitutions for chemicals that pose "potentially serious or irreversible threats" to human health. A new European Chemicals Agency would administer the program from Helsinki.
The REACH directive represents an upheaval in the basic philosophy of chemical regulation, flipping the American presumption of "innocent until proven guilty" on its head by placing the burden of proof on manufacturers to prove chemicals are safe--what is known as the "precautionary principle." REACH adds extra bite with a requirement that toxicity data be posted publicly on the new agency's website. Thus, test results that were once tightly held by chemical companies will suddenly be available to citizens and regulators across the globe. That prospect foreshadows trouble for US chemical producers.
"The chemical industry is scared that the American people might not want to be second-class world citizens," says Charlotte Brody, executive director of Health Care Without Harm, a Washington, DC-based coalition of healthcare professionals. "If people in Europe have chemicals in their toys that are not dangerous, maybe we don't want those same chemicals for our kids." With REACH, the Europeans hit a powerful nerve. The chemical industry launched an intensive lobbying campaign, conducted in parallel with the Bush Administration, to derail the proposed directive before it becomes law.
In late January, when Defense Secretary Donald Rumsfeld issued his now-famous slight of our European allies as "the old Europe," inside the State Department "old Europe" was causing panic: A draft position paper circulating inside Foggy Bottom expressed alarm at the evolving REACH proposal. By early March, the State Department sponsored a visit by Dow Chemical executives to Athens to lobby the Greeks--who at that time occupied the EU presidency--to oppose REACH. On April 29, Secretary of State Colin Powell sent out a seven-page cable to US embassies in all the EU member states claiming that REACH "could present obstacles to trade and innovation" and cost US chemical producers tens of billions of dollars in lost exports. The cable stated that REACH's precautionary principle was "problematic"--striking at the heart of the difference between the US and European regulatory approaches toward potential environmental hazards.
The State Department's tone and apocalyptic predictions that REACH could adversely affect "the majority of U.S. goods exported to the EU" (over $150 billion last year) mirrored the position papers of the industry's main lobbying organization, the American Chemical Council, on REACH. The State Department claimed that REACH would be "unworkable in its implementation, [would] disrupt global trade, and adversely impact innovation." In June US Trade Representative Robert Zoellick reiterated that argument in a submission to the World Trade Organization's Technical Barriers to Trade Committee in Geneva.
Those assertions have been vigorously disputed by the EU. In October the EU claimed in a countersubmission to the WTO that the costs of implementing REACH over the next eleven to fifteen years could total $3.5-$6.5 billion, but that those costs would be offset over time by profits generated from safer alternatives--and compare favorably to the $60 billion it estimates would be saved in chemical-related health costs alone over the next three decades.
Zoellick's objections to REACH prompted Senators Frank Lautenberg and James Jeffords to request that he provide details about who the Administration consulted before issuing its position to the WTO. "We are troubled," the senators wrote Zoellick on October 19, "by reports that the Administration fashioned its position on REACH to reflect unsubstantiated cost concerns raised by a narrow segment of U.S. industry, without any genuine consideration of the likely health and environmental benefits that such policies would generate." Thus far there has been no response to their queries.
EU officials I spoke with describe practically weekly visits from delegations representing the Commerce Department, the US Trade Representative, the State Department and/or the American Chemical Council. In April, then-Environment Commissioner Wallstrom complained to a meeting of EU and EPA officials in Charlottesville, Virginia, that REACH had been subject to "enormous interest and lobbying," but she insisted that the "consensus" for reform of the current system remains strong. The lobbying continues: In October the US mission to the EU sent out a joint appeal with the Australian mission to the EU missions of Canada, Japan and other Asian nations to attend a meeting to develop a "coordinated outreach" strategy among "EU trading partners" on REACH. Members of the European Parliament (MEPs) were invited to meetings with the US- and Australian-orchestrated delegations so the latter could communicate their opposition to REACH--an extraordinary intrusion of the United States into a debate over internal EU policy.
Never before has an EU proposal drawn fire from such heavy guns. The US chemical industry, like other American industries, has been discovering that a presence in Brussels is now a must--and has had to learn new ways to exert influence in a governing institution with three chambers, twenty-five countries and twenty national languages, and in which the usual cocktail of campaign contributions, arm-twisting and seduction are neither warmly received nor, in the case of campaign contributions, legal. "We've certainly had to learn a lot about a new parliament, new procedures, new political parties," says Joe Mayhew, senior adviser to the American Chemical Council.
The lobbying campaign has largely backfired. Its primary effect has been to delay a final vote on REACH in the European Parliament from February to the middle of next year at the earliest. But there is little doubt it will pass--almost a decade in the making, support for REACH in the Parliament stretches broadly across party lines. "It is not a question of if but when," says the EU's Robert Donkers. Hearings will commence in the Parliament on January 19. The current Dutch president of the EU has committed to forging political agreements around REACH for consideration by the Council of Ministers before the hearings begin.
The fact that policies emanating from Brussels now threaten longstanding American industrial practices is a sign of how profoundly trans-Atlantic relations are shifting. "We used to have to deal with individual countries," comments Mayhew of the American Chemical Council. "We'd pay attention to, say, France. Not to be pejorative here, but we wouldn't really pay much attention to what Spain was doing. Having the EU as a single bloc with regulatory authority is a new thing for us."