A Policy Aground

After more than two years of work, the Carter Administration is about to complete its proposals for regulating the export of hazardous products -proposals that many observers feel have been made irrelevant by Ronald Reagan's landslide victory on November 4.

The Administration has been studying ways to deal with the "dumping" of products banned at home since the summer of 1978, when Congressional hearings investigated the sale abroad of Tris-treated pajamas and other products deemed unsafe for use in the United States.

On August 12 of this year, the Interagency Working Group on a Hazardous Substances Export Policy issued its fifth draft report in the Federal Register. If accepted by the President, the policy would essentially reaffirm current practices for notifying foreign governments that firms were shipping them products banned or restricted in the United States. It would also establish a procedure for placing export controls on certain extremely hazardous products. The policy would be the most far-reaching attempt by any of the major exporting nations to control this kind of dumping.

President Carter could implement the policy with a Presidential Memorandum or Executive Order. But Reagan could dismantle it just as easily with one of those tools, or by allowing enforcement to lapse.

"A Carter executive order or presidential memo would be meaningless," says one Congressional aide working on the issue. "It's a lame duck action."

Reagan did not publicly comment on the hazardous export issue during the campaign. But his strident opposition to many environmental laws (and environmentalists), the Republican platform's call for increasing exports "through the elimination of disincentives for exporters," Reagan's opposition to the concept of exporting morality embodied by Carter's human rights policy, and the Presidentelect's previous statements in support of DDT-one product that would be covered by the proposed policy-make it extremely unlikely that Reagan would support stringent restrictions.

With Carter's defeat, attention is returning to hazardous exports legislation sponsored by Rep. Michael Barnes (D-Md.), who was handily reelected in November. Barnes' bill would require export licenses for dangerous products. Licenses would only be granted if the importing country had been notified of U.S. regulatory actions on the product and still requested it; the potential benefits of the export outweigh the hazards; if the product is sold only under restrictions here, the government would have to determine. that it would be subject to similar restrictions in the importing country. Several days of hearings were held on the bill in the past session, but no action was taken.

"There are both advantages and disadvantages to resolving the problem ... through Presidential Order," said Barnes a few months before the election. "It is swift, flexible and nearing completion., But on the other hand, it is not as durable as a Public Law . . . Will the executive mechanisms survive budget cuts and program reshuffles?"

With control of the Senate passing over to the Republicans, though, the prospects for serious legislative action on hazardous exports are also diminished. "If we had a Carter Administration we would be more optimistic about the policy being implemented downtown," sighs a House Committee aide. "If we had a Democratic Senate, we'd be more optimistic about getting legislation through."

Hazardous exports are still discussed more in terms of examples than of extent. Little information is available on just how many products, or jobs, are shipped abroad to avoid environmental or consumer safety laws in the U.S. "We just don't have any monitoring or data," says Katherine Gilman, a senior staff member at the federal Council on Environmental Quality (CEQ). "Nobody really knows how bad the problem is."

Some information is available. Hazardous exports include consumer products-such as the Tris treated pajamas and unsafe pacifiers-industrial wastes, adulterated food, ineffective or dangerous pharmaceuticals (see Multinational Monitor, August 1980), and pesticides, such as aldrin, dieldrin, chlordane and heptachlor, that have either been banned in the U.S., or were never registered for use here. According to the General Accounting Office (GAO), for example, in 1976 30 percent of U.S. pesticide exports-totalling 161 million pounds-were of products illegal to use in the U.S.

Though unsure of the problem's dimensions, the government is confident that, left unaddressed, it will grow worse. "Several factors suggest that the problem of hazardous exports is likely to increase over the next several years," wrote the Interagency Task Force. ". . . continued new discoveries of carcinogenic and other damaging effects of many substances are probable over the next few years.. In some cases, certain firms may be left with stocks of materials which can no longer be sold in the United States, and the incentive to recover some of their investment by selling ... products abroad may be considerable."

The Task Force's two-pronged strategy for controlling hazardous exports relies primarily on notifying importing countries of domestic regulatory actions.

Notification requirements under current law vary widely. For example, manufacturers may ship abroad pesticides not registered for use in the United States as long as they notify the importing country that the product is unregistered; unapproved pharmaceuticals cannot be exported, according to the Task Force's search of existing law. The Environmental Protection Agency cannot ban the export of pesticides whose registration it has revoked; but it can ban the export of toxic chemicals if their export poses risks to the U.S. environment.

The Task Force decided against recommending standardizing the requirements, instead merely reaffirming the current statutes. "Uniformity has no value," contends Gilman. "A bicycle without a rear reflector light is an entirely different thing than chlordane." The Task Force did propose minimum standards for the State Department-whose performance in transmitting the notifications has been criticized by the and the publication of an Annual Summary of domestic regulatory actions

In a more controversial move, the Task Force proposed using the Export Administration Act of 1979 to require "validated export license [s] for those prohibited and significantly restricted products which, if exported, would prove detrimental to the foreign policy interests of the United States."

Actually imposing a license requirement would not be easy. Under the Task Force's scheme, a product would only be -placed on the Commodity Control List-for which licenses are required-after elaborate review by the agency with regulatory jurisdiction, an interagency task force, the State Department and the Department of Commerce.

Once a product is on the list each request for an export license must be considered by both the State and Commerce Departments. The proposal does not cover the export of hazardous wastes, pesticides never submitted for domestic registration, nor the relocation of dangerous industries.

Environmentalists and unions who have worked in the field disagree on whether the plan goes far enough. Angela Blackwell, an attorney with Public Advocates, a San Francisco law firm representing 17 organizations including the National Lawyers' Guild and the National Women's Health Network, told Congress in September that reliance on notification is "inadequate."

"In essence, the substances for which the Working Group proposes notification are the very ones for which notification has been determined to be insufficient to protect American citizens," said Glover. "Therefore, the Interagency Working Group is recommending a double standard: that is, it will protect its own citizens through a total ban, but will merely notify foreign countries that hazardous substances, with a 'Made in the U.S.A.' label, are coming within their borders."

In comments to the Task Force on the proposal, the United Steelworkers also opposed "the informed consent theory" and called for "stringent export controls . . . on all banned and significantly restricted hazardous substances." The Steelworkers also urged the development of a hazardous alert system "to notify countries of actions on substances in the regulatory pipeline which have yet to be subjected to final rulemaking or adjudicatory action."

Specifically, the Steelworkers asked that this policy be applied to plant relocations. "At the very least," the union wrote, "foreign countries should be warned of the fact that an industry considered hazardous in the U.S. is being moved within their borders."

Jacob Scherr of the Natural Resources Defense Council believes that the Task Force's proposal is essentially sound. "In most cases," he says, "our nation's international obligations would be met through improved notification procedures."

But Scherr pointed out "Many American environmental and consumer organizations remain wary of the Departments of State and Commerce, which are given the major responsibilities under the [proposal] ... These agencies are seen as often having a concern only for the promotion of U.S. exports."

Business groups have deluged the Task Force with comments opposing the plan. In typical remarks, Du Pont asserted that "The policy would impose a new export disincentive on United States industry and thus run counter to current domestic policy to expand exports. With the current state of the balance of trade it is as untimely as it is unwise."

Several business groups-including Du Pont, and the National Agricultural Chemicals Association-threatened that adoption of the proposals would force industry to relocate abroad. "[T] he foreign publication of proposed regulatory actions is unfair to the pesticide industry and the United States which cannot afford any loss in the balance of trade, either by loss of export I sales to existing foreign competitors, or by forcing of American companies to produce abroad to meet foreign competition," wrote Du Pont.

The most important opinions, however, have yet to be registered. As business lobbyists anticipated, the Carter Administration delayed a decision on the Task Force's recommendations until after the election. CEQ staffers say they are "working as fast as possible" to prepare a final proposal for Carter's consideration. Within the Administration, the proposal has little support from the Council on Wage and Price Stability which has urged the Task Force to loosen the notification requirements and to ensure that the export controls are used only "under very special conditions-specifically, when serious foreign policy or national security concerns are at stake.".

Members of Reagan's environmental advisory committee say the incoming Administration has not developed a position on the issue and hasn't even discussed the matter at its meetings. On the other hand, Sen. Jesse Helms (R-NC), new chairman of the Senate Agriculture Committee and a strident Reagan backer, filed formal comments against the plan, writing in October that "The report fails to note that execution of the policy itself would inevitably cause loss of export trade. The more products banned, the greater the loss."

Supporters of the policy counter that controls are necessary to maintain the respectability of U.S. goods. "If we really want to improve our trade position," says Rep. Barnes, "the last thing we should do is tolerate the export of health hazards that sully the reputation of our products."

Even if the Reagan administration adopts, and implements, the Task Force's proposal, such a move would represent only the first steps in dealing with hazardous exports. As the chemical industry reminded the Administration, companies can avoid export controls simply by shifting production abroad.

But action on the international level is only getting underway. The Organization of Economic Cooperation and Development (OECD) has established a notification system of actions on consumer products-but only between its member nations. OECD is also planning a conference on international chemical trade for next April in Yugoslavia. But an international covenant regulating such dumping is under no circumstances imminent. Dr. Robert Harris, co-chair of the Task Force, says that other major exporters in Western Europe, as well as Japan, have not supported even the Administration's initiative.

"The U.S. is by no means the only hazardous exporter," says Scherr. "Indeed, the other major chemical-producing nations in Europe and Japan have shown little or no concern about this problem. There remains the urgent need to establish even the most basic international rules to govern commerce in hazardous goods."

Scherr believes that "Ideally, what is required is a multilateral convention on international commerce in hazardous products." But since negotiating such a treaty would be "extremely difficult," he proposes using the 1976 International Covenant on Economic Social and Cultural Rights to more quickly ban the trade in dangerous products.

Article 12 of that covenant affirms the human right "to the enjoyment of the highest attainable standard of physical health." "It is my view," says Scherr, "that the failure of exporting and importing countries to curb the practice of dumping banned products abroad constitutes a violation of this human right to health and a safe environment."