ONE FREQUENT COMPLAINT ABOUT CONGRESS IS THAT partisan differences make it all but impossible to reach agreement on many of our most pressing problems. Some things, this line of thinking goes, are simply too divisive or controversial ever to be resolved. While the increased hostility between Democrats and Republicans certainly poses a hurdle, it is hardly insurmountable. The example of how the government came to regulate harmful pesticides that were making their way into the foods we eat illustrates how bipartisan cooperation can happen—and how sometimes, even on issues of tremendous importance, the public may not even realize that it has occurred. By the mid-1990s, the problem of what to do about pesticides had frustrated Congress for almost two decades, until members of my staff and the staff of Tom Bliley, a Virginia Republican, met secretly with representatives of a few key government agencies for three days of negotiations. This negotiating session solved a seemingly intractable problem by producing a new law to regulate pesticides that was both easier for industry to comply with and vastly improved health protections for millions of American families.
In 1995, a woman named Nancy Chuda came to my office to lobby me about the effects of pesticides on children. A few years earlier, Nancy’s five-year-old daughter, Collette, had died of a rare, nongenetic kidney cancer called Wilms’ Tumor that was generally believed to be caused by exposure to chemical pesticides. Nancy wanted Congress to pass stricter safety standards for pesticides, and she had solid evidence to justify why this was a good idea. A number of recent studies had established a link between environmental toxins like pesticides and childhood cancer. And at the time, environmental protection standards in the United States were based on determinations of the potential effects of carcinogens on a 155-pound adult male. Children are obviously much more vulnerable to dangerous chemicals than fully grown adults.
My subcommittee, Health and the Environment, had legislative and oversight jurisdiction over water, air, and food. Establishing appropriate safety standards to protect children, and especially infants, from pesticides was a goal that had long eluded me. The pesticide industry grew out of the chemical weapons industry of World War II. After the war, chemical companies discovered that many of the substances they produced were effective killers of weeds and bugs and could be put to use by America’s farmers. Chloropicrin, a World War I chemical warfare agent thought to have DNA-damaging effects, became an effective fumigant to kill plant root fungi and bacteria (it is also an active ingredient in tear gas). Organophosphate pesticides were originally developed in Germany during the 1930s as nerve agents for military use. Little was done in the way of health and safety testing. These pesticides and others like them were routinely being used on fruits and vegetables.
Over the years, a gradual awareness of these health risks had begun to take hold. In 1962, Rachel Carson’s book Silent Spring alerted the public to the environmental dangers of DDT and similar agents. The environmental movement of the 1970s furthered this cause. In 1989, the Alar scare, prompted by a 60 Minutes broadcast about the cancer-causing chemical that apple growers sprayed on their trees only for it to make its way into children’s apple juice, led to heightened awareness of the dangers of pesticides on food. But none of this was enough to create the momentum necessary to pass meaningful safety standards. A Clinton administration bill offered in 1993 to limit the use of pesticides had gone nowhere.
One difficulty confronting major pesticide legislation was that, in contrast to similar health issues like safe drinking water and clean air, most people didn’t have a clear concept of the problem and its effect. The clean air debate in the United States was transformed overnight in 1984 when methyl isocyanate gas leaked from the Union Carbide chemical plant in Bhopal, India, instantly killing more than three thousand people. Lacking such a vivid illustration of its dangers, the problem of pesticides had lingered unresolved for years, even though some of the products sprayed on crops derived from the very same chemical, methyl isocyanate, that had laid Bhopal to waste. In part for these reasons, pesticides also didn’t rate as high a priority for the major environmental groups, so outside support was hard to come by as well.
In oversight hearings, the subcommittee had nevertheless made every attempt to convey the horror of how cancers had destroyed children like Collette Chuda and to highlight reports like the landmark 1993 study by the National Academy of Sciences that connected the alarmingly frequent instances of childhood cancer with pesticides. So the issue could be dramatized—but our efforts to do so usually produced only one-day stories. Good legislation is the fruit of a complicated process that requires sustained pressure and attention. The problem with generating public interest about pesticides was that it was hard to pinpoint the effects, however deadly, on particular people. The gap between a period of prolonged exposure and the onset of disease—as contrasted with the sudden deaths by asphyxiation in Bhopal—also made it easier for our opponents to block our efforts. The chemical companies would besiege members of Congress with elaborate charts and numbers to “prove” that legislation like the Clinton bill that sought to curtail the use of chemical pesticides would without a doubt bankrupt the industry.
Another obstacle stemmed from a quirk of the law: It placed completely different regulations on raw foods and processed foods, particularly for cancer-causing substances. This had the perverse effect of imposing very strong standards on processed foods and very weak standards on raw foods, an anomaly that had kept industry and public interest groups at war for almost forty years. The main source of contention was an obscure legal provision known as the Delaney Clause. The Delaney Clause was a 1958 measure named after Representative James Delaney of New York that banned from processed foods “any chemical additive known to induce cancer.” The capacity to measure the amount of carcinogens in food was not very sophisticated in 1958. But by the 1970s, the technology had advanced to the point where even trace amounts could be detected. This created a headache for farmers and food manufacturers. Many of the pesticides they had relied on for years were now showing up as carcinogens in processed foods, putting manufacturers in technical violation of the Delaney Clause. The industry dealt with this problem in two ways. Beginning in the late 1970s, its allies in Congress urged that the clause be weakened or preempted. At the same time, it pressured state and federal regulators not to enforce the law too strictly, lest it drive them out of business. For a long while, this approach seemed to work. The Delaney Clause was a strong law on the books, but it simply was not being enforced. Finally, public interest groups that supported the strict standard sued for tougher enforcement, and in 1992 the Ninth Circuit Court of Appeals in San Francisco ruled that the government must uphold the absolute ban on carcinogens.
But the Delaney Clause did not apply to raw foods, and the laws that did apply were awful—in effect, permitting farmers to use chemical weapons to treat their crops. This was especially harmful to children, who tend to eat more fresh fruits and vegetables than adults do. Everyone knew the law didn’t work because it didn’t cover raw foods the way it should have. And yet it seemed impossible to fix. In exchange for not blocking stronger raw food laws, industry demanded the repeal of the Delaney Clause, which would weaken the regulation of processed foods.
IN 1994, THE POLITICS OF PESTICIDES, AND EVERYTHING ELSE, WAS upended when Republicans won control of the House of Representatives, changing the culture of Congress overnight. Republican issues suddenly took precedence, which meant that industries’ interests often trumped the broader public good. Republicans not only controlled the committees, but also the rules. One of their first acts was to repeal many of the parliamentary maneuvers I had used in the past to delay legislation, like Reagan’s Clean Air Act amendments, that seemed dangerous. Most significantly, Republicans completely overturned the committee system that had obtained since long before my arrival in Congress. The old system, in which chairmen like Paul Rogers took careful account of everyone’s views, and members of both parties deferred to the expertise of committees and subcommittees, gave way to a rigid hierarchy in which the only view that mattered was the view of the new Republican leadership.
What had been a “bottom-up” process now became “topdown” in a way that distinctly recalled how the California Assembly had operated under Jesse Unruh. All decisions flowed from the top. Ideologues like Newt Gingrich and Tom DeLay, who dominated the Republican leadership, had little interest in anyone else’s input, including those members of their own party who didn’t fall into line. Republican chairmen quickly realized that they served at the pleasure of their leadership, and that the leadership’s only concern was ramming through the provisions of the “Contract With America,” a list of right-wing grievances that had featured prominently in the 1994 midterm elections. Rather than draft bills, these chairmen were handed legislation by the leadership (often written by lobbyists) and ordered to pass it in a matter of days. Sometimes there would be a hearing; other times there wouldn’t be. Debate was curtailed, amendments often limited or forbidden, and on many occasions members weren’t even given enough time to read the bills they were being asked to vote on. As a result, many members (especially Democrats, who were shut out of the drafting process) didn’t have much of an understanding of the legislation passed through Congress during this period. Congress had stopped functioning as a legislative body wherein committees with relevant expertise wrote the nation’s laws, but instead became a rubber stamp for the most powerful elements of the Republican Party. And “consensus” became a bad word.
It wasn’t long before the Republican leadership turned to the issue of pesticides—or rather, to satisfying the food industry’s desire to at last repeal the Delaney Clause. The instrument for doing so was a bill sponsored by Tom Bliley, the Virginia Republican and chairman of the House Energy and Commerce Committee, that appeared to have been written by industry lobbyists. You can usually determine a bill’s provenance by checking certain markings on it. When a congressman’s staff writes a bill, the formal text is prepared by the House Office of Legislative Counsel, which ensures that existing statutes are properly amended and the new measure’s language conforms to the necessary rules. When a bill has undergone this process, each page carries an HLC file number. What gave the Republican pesticide draft away (apart from its content, an industry wish list) was its lack of HLC markings—an absence true of much of what the new Republican leadership introduced. Needless to say, the prospects for my own bill, mandating disclosure of carcinogens in all foods and setting safety standards for kids, did not look very rosy.
Because the Appeals Court had ruled that the Delaney Clause must be enforced, Republicans were rather urgently set on repealing or preempting it. By the summer of 1996, we were very much on the defensive and stood a good chance of getting rolled. But powerful as it was, Bliley’s contingent faced an unwelcome reality: Even if the bill got through Congress, President Clinton would almost surely veto it. Were that to happen, the food industry would have to contend with the full weight of the Delaney Clause.
House Republicans had an additional worry. For all their Sturm und Drang, few provisions of the “Contract With America” had actually made their way into law. And their leadership had committed a serious tactical error when it shut down the federal government during a November 1995 budget dispute with the White House, a maneuver that backfired when the public blamed the Republicans, rather than Bill Clinton, for the fiasco. With the 1996 election looming, House Republicans were beginning to realize that they had precious little to show voters in the way of tangible accomplishments.
These conditions created a perfect opportunity for bipartisan compromise. Although Bliley and I hailed from opposite ends of the political spectrum and our views diverged on almost every issue, we had developed a good relationship. Bliley, a mortician by trade and a serious Catholic, hailed from Richmond, Virginia. His manner was always gentlemanly and proper. I had come to know him over the years and regarded him with fondness and respect. Once, on a congressional delegation to Prague, Bliley and his wife had joined Janet and me for Passover Seder. This friendliness eventually led us to collaborate on legislation. Only a month or so before the pesticide issue came to a head, we had put aside our strong policy disagreements and struck a deal to renew the Safe Drinking Water Act. Recognizing that it would be nearly impossible to pass my own pesticide bill, but also that Republicans were growing desperate for an achievement, I sensed that even in the minority we might be able to insist on something strong. So I suggested to Bliley that it might be worthwhile to get together in secret and conduct a hypothetical negotiation to see if we could reach an agreement on pesticides.
Bliley instantly recognized the attraction of this unusual approach. Secrecy afforded us the cover to move away from long-held positions that would have generated an outcry from interest groups on both sides were it conducted in public—one of the great recurrent problems of trying to hash out a bipartisan bill. We agreed that our staffs would sit down for three days to work out a comprehensive deal, both of us vowing to honor the terms if they emerged successful. If they failed, no one else would know that Henry Waxman had been willing to preempt the Delaney Clause or that Tom Bliley had entertained the notion of tougher safety standards on raw foods. No one wants to be caught making major concessions until they’re certain a deal can be struck. Here, the ground rules assured we wouldn’t have to.
There remained an element of risk to both sides. In any such negotiation, political considerations bump up against policy goals. My agreeing to a deal would hand Republicans an accomplishment they could cite while campaigning against Democrats in the upcoming election. But it would also strengthen a law that we had been fighting to improve for nearly two decades, and the effect would be to protect children and adults from dangerous pesticides, which would ultimately save lives. A perennial dilemma for any congressman is whether to trade bad politics for good policy. Doing so on pesticides struck me as well worthwhile.
We began one Wednesday morning in July. Assembled along with my chief of staff, and Bliley’s, were representatives of the committee’s ranking member, John Dingell, the FDA, and EPA, as well as the food industry and environmental organizations. One group absent from the proceedings was lobbyists. A common misconception about Washington is that lobbyists pull the strings. But most of them are former committee staffers whose job is merely to monitor developments and report back to the industry officials who employ them. Negotiating with lobbyists is a tedious and time-consuming affair because they are not usually empowered to make decisions and first must check with their clients, who in turn must check with their lawyers before a decision can be made. Lawyers are the only ones on the industry side steeped in the gritty details. Phil Schiliro, my chief of staff, wisely insisted that everyone involved here be given the power to make decisions.
Once underway, talks proceeded quickly. Our side wanted stronger standards for raw foods, and was willing to give a little on processed foods in order to get them; the food industry wanted to get out from under the Delaney Clause, badly enough that it was willing to yield on raw foods. While the liberal public interest groups were adamant about upholding Delaney, I was prepared to consider a law that stopped short of an outright ban on carcinogens. While I was perfectly content to live with the Delaney Clause, the truth is that so strict a standard was actually tougher than it needed to be, since trace amounts of many harmful substances are often benign. By Friday night, we had settled on the broad but rigorous standard that any pesticides used on foods must carry a “reasonable certainty of no harm” and take special account of vulnerable populations like infants and children. “Reasonable certainty” was defined as a one-in-a-million chance of causing cancer. The food industry was liberated from Delaney and avoided having to take a number of pesticides off the market.
On Saturday, the House Legislative Counsel drafted the agreement. The following week, it sailed through subcommittee and committee, and then won the unanimous approval of the House. A week later, the Senate passed the bill verbatim, and it was off to the president’s desk. It was not a tough sell. When Phil called to inform Clinton’s chief of staff, Leon Panetta, that we had reached a compromise on pesticides and started explaining the particulars, Panetta stopped him. “If Waxman and Bliley are together on this,” he said, “I don’t need to know anymore. We’re for it.”
THE RESOLUTION OF THE PESTICIDE ISSUE AFTER ALMOST TWO DEcades of frustrated stalemate happened so suddenly, and so quietly, that the scope of the achievement almost didn’t register. The news media are conditioned to assume that the most important political issues are the ones that create the greatest amount of public drama and culminate in gavel-pounding showdowns on the House floor. They didn’t quite know how to treat the announcement of our deal, so the response was muted. Even some sophisticated participants didn’t fully grasp what to make of it. When I called Nancy Chuda with word that we had accomplished our goal, the news was so unexpected that at first it seemed not to register. This set me to pondering the old line about a tree falling in the forest: When a law of real weight is enacted without anyone noticing, does it still count as an accomplishment?
But, of course, the important thing was not public fanfare but the quality of the new law. We had managed to pass a uniform national pesticide standard that would protect the health and safety of all Americans—and we had done so from a position of considerable weakness. Three things made this possible. The first was my relationship with Tom Bliley. Despite party differences, we implicitly trusted one another not to go public, had things not worked out, with the details of what the other had been willing to concede. Second was the fact that all those at the table were empowered to make decisions. And third, they were fully prepared to see them through. The only way this type of negotiation can succeed is to tackle the whole problem in one fell swoop, so that news of the deal arrives concurrently with the endorsements of all the major interests. Aside from a handful of staunch advocates of the Delaney Clause who criticized me, the new law—formally the Food Quality Protection Act of 1996—came off without a hitch.
ONE OF THE LAW’S CRITICAL ACHIEVEMENTS WAS THAT IT ESTABlished an underlying principle for how pesticides would be regulated that favored public health over industry interests. Since the 1950s, food manufacturers had argued that laws regulating pesticide use should be driven by the cost of compliance—it was, that is to say, desirable to protect the public health only insofar as the cost of doing so did not weigh too heavily on farmers and food processors. The public interest community countered this notion with the assertion that the goal of any pesticide law should, first and foremost, be to protect the public health. The Food Quality Protection Act was a triumph in part because the requirement that any pesticide used must carry a “reasonable certainty of no harm” was a “health-based,” rather than a “cost-based,” standard: No matter what it cost industry, pesticides that exacted a serious effect on health were blocked from human consumption.
This is exactly how the law operated—and what happened next should serve as a reminder that even the best-written laws have unintended consequences, and as such must constantly be updated and strengthened to ensure that they are performing the function Congress intended.
Under the new law, the EPA took responsibility for regulating pesticides according to the health-based standard, the hope being that this would diminish health risks and encourage farmers to use safer pesticides. But as this began happening, the manufacturers of the more dangerous chemical pesticides realized that they would have to stop making them unless they could somehow find a way to meet the new safety standard.
Measuring the health effects of pesticides necessarily entails a measure of informed guesswork. At the time of the Food Quality Protection Act, the process involved giving animals strong doses over a short period of time, seeing what happened to them, and extrapolating the likely effects on human beings. If a large dose of something appears to be safe in animals—if it didn’t correlate with cancers or reproductive or developmental problems—chances are that a much smaller dose is not likely to harm humans. Scientists use this information to develop risk models for the effects of individual pesticides, and can pluck food right off supermarket shelves and test it to see if it complies. They have even developed a rule of thumb for what constitutes a safe level for human ingestion, which they call the Two Tenfold Safety Factor. Once a safe threshold among animals has been determined, they will reduce that amount tenfold (an appropriate level of caution for human exposure) and then do so once more (since some people are going to be more sensitive than others). Hence, the Two Tenfold Safety Factor. Because the new law required stricter standards for infants and children, yet a third tenfold safety factor was included to make the standard even stronger. The increase from two to three tenfolds was enough to render some pesticides unusable on foods. So the chemical industry, seeing that mathematics lay at the heart of their problem, realized that it could challenge the formula—and remove one tenfold safety factor—if, instead of testing pesticides on animals, it was allowed to test them directly on human beings.
The Clinton administration refused to permit this and imposed a moratorium on human testing. But when George W. Bush became president, he ushered in an era of unfettered deregulation that rivaled even the Reagan era. Sensing correctly that the tide had changed, the chemical industry set out once more to persuade regulators to accept human testing. In October 2001, the EPA’s assistant administrator, Stephen L. Johnson, announced at a meeting of the American Crop Protection Association, the pesticide industry trade group, that the Bush administration would indeed give human testing the green light. To her credit, Christie Todd Whitman, Bush’s first EPA administrator, refused to go along with this. But Whitman soon found herself unwelcome in the administration, and left in 2003. By the time Johnson took over the EPA in 2005, he had already put his own views on human testing into practice.
One of the most appalling programs that Johnson initiated was the Children’s Environmental Exposure Research Study (known by the bizarre acronym CHEERS). The study, which was partially financed by the chemical industry, sought to examine the effects of pesticides on low-income children, whose families—furnished with $970, a video camera, and CHEERS T-shirts and baby bibs—were asked to record the chemical exposure for two years, during which EPA scientists would periodically collect urine samples.
The CHEERS program was halted only after coming to light during Johnson’s confirmation hearings, and even then only grudgingly. But the Bush EPA continued to allow the human testing of pesticides. Alarmed by this trend, I joined with Senator Barbara Boxer of California to commission a report establishing just what tests were being undertaken, whom they were being undertaken on, and whether they had any scientific merit.
The report uncovered “significant and widespread deficiencies” in the two dozen human pesticide experiments that had been considered, or were in the process of being considered, by the EPA, some of them decades old and many of them conducted overseas (oddly enough, Scotland seems to be a haven for human testing). “In violation of ethical standards,” the report stated, “the experiments appear to have inflicted harm on human subjects, dismissed adverse outcomes, and lacked scientific validity.” Among the tests were cases where subjects had been dosed with organophosphates (used as nerve agents by the German army) and methyl isocyanate (the Bhopal gas); others had been placed in a gas chamber with chloropicrin (the active ingredient in tear gas)—and in doses well beyond federal exposure limits; in several experiments, the subjects were instructed to take pills of insecticide with their breakfast orange juice.
The adverse effects that these tests documented were routinely dismissed. A twenty-eight-day test of azinphos-methyl, a pesticide produced by the Bayer Corporation, on eight subjects produced headaches, abdominal pain, nausea, coughing, and rashes. The researchers concluded that every adverse reaction was unrelated to the chemical being tested, instead attributing most of them to “viral illness.” A six-month study of dichlorvos, a pesticide manufactured by American Vanguard, included youngsters from two to nineteen, whose homes were outfitted with resin strips containing dichlorvos. When a teenage girl complained of headaches, the researchers removed the resin strip from her bedroom and the headaches stopped. Yet they still concluded that this, too, was not caused by the pesticide: “Questioning of the parent revealed the likelihood that the headaches were produced by other pressures.”
Scientifically valid drug tests ordinarily require thousands of human clinical trials to determine safety and efficacy, and even then often miss particular effects. Many of the human pesticide experiments involved no more than a handful of subjects. One study had but a single subject: The researcher dosed himself. Yet the Bush administration justified this combination of the dangerous with the arbitrary by arguing that such studies were “available, relevant, and appropriate.”
Congress responded to the news that human beings—including children—were being used as lab rats by attaching a rider to an appropriations bill that prohibited the EPA from “accepting, considering, or relying upon” these types of studies until strict procedural standards had been established. While the amendment did garner the support of many religious conservatives who were troubled by the moral and ethical implications of intentionally dosing people with toxic chemicals, many Republicans still lined up behind the pesticide industry. But rather than engage in a public fight on an issue where the politics so clearly did not favor them, they let the bill pass, and President Bush eventually signed it into law.
In February 2006, the EPA issued a new rule on human testing that imposed some restrictions but stopped short of banning it outright. (Johnson still wanted to keep the door open.) These new regulations established a Human Subjects Review Board within EPA and forbade the agency to consider experiments on humans “intended for submission to EPA’s pesticide program.” Here is yet another example of how a single word can determine a law’s effectiveness: When only those experiments “intended” for submission to the EPA are forbidden, a loophole opens for any other kind of human testing. So an industry group intent on getting around one tenfold safety factor could simply sponsor a test for “research” rather than regulatory purposes, and rest confident that the EPA would likely accept the study.
And this, of course, is exactly what happened. Though the Human Subjects Review Board has disallowed some human studies, it has let others be considered, thus weakening our protection against pesticides. The Natural Resources Defense Council has sued in federal court to overturn the EPA rule. Regardless of the outcome, this is an area that continues to demand vigorous congressional oversight.
But despite these ongoing skirmishes, the Food Quality Protection Act of 1996 has enjoyed a high degree of real success, with the public being exposed to fewer dangerous chemicals. It serves as a clear example of how Congress works to protect people even when the news media aren’t paying careful attention. I can’t help but find it somewhat ironic that since the 1990s, when we passed the Safe Drinking Water Act and the Food Quality Protection Act, there has been a huge shift in consumer behavior toward buying bottled spring water and organic foods. People obviously care a great deal about what sorts of chemicals they and their families consume, and they don’t trust food makers to do a good enough job of regulating safety. The good news is that they no longer have to. Thanks to Congress, the worst pesticides are no longer used on foods.