Public health groups are "fully committed to taking all steps available to assure that the Inhance fluorination no longer produces dangerous PFAS which put workers, consumers, and communities at risk."
As public health experts raise alarm over the prevalence of highly toxic "forever chemicals," as per- and polyfluoroalkyl substances or PFAS are commonly known, one nonprofit investigative journalism outlet warned Saturday that a recent ruling could further tie up the regulatory process for the chemicals and other harmful substances.
"This ruling is likely to impede already excruciatingly slow efforts to regulate the presence of health harming chemicals in products people use in every part of their lives," said Watershed Investigations of a decision handed down earlier this month by the right-wing Fifth Circuit Court of Appeals in New Orleans.
The case is one of several involving Inhance Technologies, a Houston-based company that manufactures an estimated 200 million plastic containers each year using the fluorination process, which creates perfluorooctanoic acid (PFOA), a toxic PFAS compound.
In 2020, the Environmental Protection Agency (EPA) began requiring companies to submit notices regarding "significant new uses" of PFAS under Section 5 of the Toxic Substances Control Act (TSCA), as officials identified the chemicals as an "urgent public health and environmental issue" due to their links to cancer, liver and kidney disease, reproductive harms, and other serious health problems.
The agency found that PFAS were leaching into pesticides held in containers produced by Inhance.
In December, the agency prohibited Inhance from using the fluorination process because it had identified PFAS as an "unavoidable aspect" of its operations. Inhance sued the EPA soon after.
Inhance said that ending its fluorination practices would ultimately force the company to shut down and fought the EPA's order, arguing that it had created its plastic containers in the same way for decades, and therefore was not subject to the TSCA provision regarding "significant new use."
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The EPA argued it only became aware of Inhance's process in 2020, but the conservative court disagreed that it could regulate the company under the "new use" rule—even as the judges acknowledged the company's products are harmful.
"The court did not dispute EPA's underlying decision that this is a danger to human health, what they did was say it's not a new use, which I think is wrong... but this case isn't over by any stretch," Kyla Bennett, a former EPA official who is now director of science policy for Public Employees for Environmental Responsibility (PEER), told The Guardian Saturday.
The judges said the EPA would have to regulate Inhance's containers under Section 6 of the TSCA, which it said requires the EPA to take into account the economic impact any regulations would have on Inhance.
PEER noted that Section 6 also states that health risks should be considered.
"The court erroneously limits EPA's authority to issue significant new use rules (SNURs) under the TSCA, seriously weakening this important tool for managing chemical risks to health and the environment which has been a mainstay of the TSCA program since the law's enactment in 1976," the group said.
Another case is playing out in the U.S. District Court for the Eastern District of Pennsylvania, where the EPA sued Inhance in 2022 for violating the TSCA. The Center for Environmental Health and PEER also took legal action against Inhance for the same reason, and against the EPA last month for withholding test data regarding PFAS in plastic containers.
"There are several paths forward," said PEER, "and our groups are fully committed to taking all steps available to assure that the Inhance fluorination no longer produces dangerous PFAS which put workers, consumers, and communities at risk."
After the Chamber of Commerce successfully challenged one version of a disclosure regulation in court, the commission should come back with a revised, stronger proposal.
The corporate flacks over at the U.S. Chamber of Commerce are clearly fretting about the growing movement to crack down on stock buybacks—and for good reason.
For years now, public outrage has been growing over rampant corporate spending on buybacks, a financial maneuver that generates huge windfalls for CEOs while siphoning resources from worker wages and productive investments. In response, federal officials have taken a series of whacks at this shady form of stock manipulation.
In 2020, Congress banned airlines that got pandemic relief aid from spending funds on stock buybacks. In 2022, federal lawmakers adopted a new excise tax on buybacks. That same year, the Biden administration announced plans to make it hard for buyback-spending companies to win a cut of new mega-billion-dollar semiconductor subsidies.
Then, in 2023, the Securities and Exchange Commission (SEC) issued a new rule that arguably poses the most direct threat to CEOs who’ve been milking the buyback scam. The regulation requires companies to increase buyback activity reporting from monthly to daily and to reveal whether top executives or directors bought or sold company shares during the four days before or after a buyback announcement.
None of these companies want to see their executives in the headlines for unloading boatloads of stock after a buyback announcement. At best, it would be embarrassing. At worst, it could be the beginning of the end of the buyback bonanza.
To be clear, this is just a disclosure regulation. No company would pay more in taxes or lose a lucrative government contract as a result of it. But America’s top corporate executives are not stupid when it comes to protecting their own paychecks. Stock-based pay makes up the vast bulk of their compensation. And they know what could happen if these reports show a pattern of executives timing their trades to profit from buyback-fueled bumps in share values. This damning data could build the case for restoring the effective ban on stock buybacks that existed until 1982, when President Ronald Reagan’s SEC legalized the maneuver. Not that we don’t already have ample evidence indicating that CEOs are opportunistically timing their trades around buybacks. A 2018 SEC investigation found that executives cash out much more of their personal stock immediately after announcing a buyback than on an ordinary day.
But that SEC study relied on non-public data. The new regulation would shine a bright light on individual corporate insiders who appear to be gaming buybacks to pad their own pockets.
The Chamber of Commerce Board of Directors is stacked with representatives of companies that have spent billions on buybacks in recent years, including Chevron, ConocoPhillips, Comcast, Hilton, Cognizant, and Pfizer. None of these companies want to see their executives in the headlines for unloading boatloads of stock after a buyback announcement. At best, it would be embarrassing. At worst, it could be the beginning of the end of the buyback bonanza.
Immediately after the SEC issued the new regulation, the Chamber of Commerce sued to block it. Of course their lawsuit downplays their self-centered concerns and instead focuses on legal technicalities, mostly related to the SEC’s cost-benefit analysis of the regulation.
In perhaps the lobby group’s most imaginative argument, they assail the commission for insufficiently analyzing the impact of the new excise tax, which went into effect in 2023. If this tax reduces buyback activity, the chamber reasons, companies would still bear the administrative costs of disclosure but the benefits would be lower. Less buybacks, less need for transparency. This would be like arguing that if federal fines are effective in reducing industrial pollution, then companies no longer need to report their toxic emissions data.
The Chamber has never been afraid of putting forth absurd arguments to shield greedy executives. For five years, they hurled one ridiculous claim after another against a provision in the 2010 Dodd-Frank financial reform law requiring disclosure of the gap between CEO and median worker pay. In one particularly hilarious “report,” they claimed that accountants would need an average of 1,825 number-crunching hours to figure out the median salary in their own company’s payroll.
Fortunately, the SEC stood up to the Chamber on the CEO-worker pay ratio disclosure regulation, and companies have been reporting that information since 2018. But the battle over buybacks disclosure has been rockier.
On October 31 of last year, the Fifth Circuit Court of Appeals partially sided with the chamber and gave the SEC 30 days to correct supposed “defects” of the regulation. The commission requested a 60-day extension, but the court refused and struck down the rule in December.
The question now: jill the SEC simply roll over and let the Chamber of Commerce call the shots on buybacks? In a joint petition to the agency, Americans for Financial Reform and several other groups are calling on the SEC to forge ahead with a revised, stronger proposal.
Without strong action from our regulators, stock buyback abuse will only escalate.
ALEC politicians considered model policies and resolutions related to an Article V constitutional convention, so-called “woke” capitalism, school curricula, the environment, gutting regulations, and more.
State lawmakers, corporate lobbyists, and right-wing operatives got together in Scottsdale, Arizona, last week for the 2023 States and Nation Policy Summit hosted by the American Legislative Exchange Council, or ALEC. The summit—one of the largest annual gatherings of the ALEC faithful, along with the summer meeting—caps off ALEC’s 50th anniversary year.
Following its 50th Annual Meeting in July, ALEC held a formal gala on October 4 at the National Portrait Gallery in Washington, D.C., where attendees were met with protests highlighting the pay-to-play group’s “50 Years of Harm.” ALEC also organized a “50th Anniversary Policy Day” at the U.S. Capitol that featured discussions on artificial intelligence; environmental, social, and corporate governance (ESG) investment strategies; school privatization; and the “state tax cut revolution,” as an agenda obtained by the Center for Media and Democracy (CMD) details.
Meeting at the four-star Westin Kierland Resort & Spa in Scottsdale, ALEC politicians considered model policies and resolutions related to an Article V constitutional convention, so-called “woke” capitalism, school curricula, the environment, gutting regulations, and more.
Among the slate of Republican politicians and other right-wing speakers were former Arizona Governor Doug Ducey, U.S. Speaker of the House Mike Johnson (via video), former U.S. Speaker of the House Newt Gingrich, Arizona State Supreme Court Justice Clint Bolick, and many others.
Major Push for a Constitutional Convention
ALEC prioritized its push for an Article V constitutional convention early in the opening session with multiple speakers who advocated for the radical move to rewrite our nation’s founding document.
In his address, the new House speaker (and ALEC alumnus) called the size of the federal debt “the greatest present threat to our national security” and announced “plans for a bipartisan debt commission to study and propose solutions to begin reducing our debt and putting America back on a path to fiscal responsibility.”
Johnson has long supported the Convention of States, one of the right-wing groups lobbying for state resolutions to hold a constitutional convention. The group relies on ALEC as a tool to reach state legislators to back its extreme plan to rewrite the U.S. Constitution in order to drastically curtail federal powers and lock in minority rule.
He noted that several states are considering whether to file a case against Congress with the goal being “to get a case before the Supreme Court to force the Congress to discharge its constitutional responsibilities.”
ALEC used this most recent policy summit to double down on a strategy first presented in 2020 claiming that unrelated and outdated state resolutions should be counted to meet the threshold of the 34 state calls needed to hold a constitutional convention. Using this rationale, the threshold was reached in 1979, making Congress legally required to convene a constitutional convention immediately.
U.S. Rep. Jodey Arrington (R-Texas) presented the bill he has introduced (HCR 24) to do just that, claiming Congress has “failed in its constitutional duty to count applications and call a ‘Convention for proposing Amendments.’”
“Working with my friend and our fearless leader in the House, Speaker Mike Johnson, I’m going to continue to push to pass this important legislation to stave off a sovereign debt crisis, to rein in the reckless and wasteful spending in Washington, and to return power back to the sovereign states,” Arrington said.
David Walker, former comptroller general of the U.S., discussed steps being taken to force the issue in the courts. “The Federal Fiscal Sustainability Foundation (of which I’m a board member) has financed the drafting of a declaratory judgment filing by a prominent D.C. firm with significant Supreme Court experience,” Walker explained. He noted that several states are considering whether to file a case against Congress with the goal being “to get a case before the Supreme Court to force the Congress to discharge its constitutional responsibilities. We need more states to join this effort.”
Utah State Rep. Ken Ivory (R) also called on ALEC lawmakers to urge the Supreme Court to act. “Please join us in the state of Utah as we look into the legal mechanisms that we have under the Constitution… to declare that Congress must count the applications,” Ivory implored. “And if, as we believe, we’ve already achieved 34 applications to Congress for a fiscal responsibility convention, call [it]… and hold a Convention of States.”
In a workshop titled “Article V: The People’s Voice and State’s Empowerment Tool,” ALEC lawmakers heard from “legal experts” who delved “into the merits of a Declaratory Judgment suit against Congress, specifically addressing its negligence since 1979 in calling a Convention for an inflation-fighting Fiscal Responsibility Amendment.”
More Attacks on ‘Woke’ Capitalism and Sustainable Investing
Attacks on so-called woke capitalism and sustainable investing were featured prominently throughout the summit.
ALEC’s Tax and Fiscal Policy Task Force held a discussion on “States Keeping Politics Out of Pensions” and reconsidered the Proxy Voting Integrity and Transparency Act that failed to pass at the annual meeting in July. Now that this model bill—which seeks to prevent government entities managing public pension plans from considering ESG factors when engaging in the proxy voting process—didn’t pass this time either, it’s likely dead.
At their meeting, members of the Energy, Environment, and Agriculture Task Force voted on making adjustments to the Model Policy Amending the Prudent Management of Institutional Funds Act, but it didn’t move. The changes would have prohibited the consideration of ESG factors in the management of public institutional funds.
This model is also hosted on the Heritage Foundation website, as are most anti-ESG model policies introduced at ALEC meetings over the past few years.
At the closing session, Andy Puzder, former CEO of CKE Restaurants, the parent company of the popular fast-food chains Carl’s Jr. and Hardee’s and a visiting fellow at Heritage, once again drummed up fears about ESG as a lens for investing, calling it a “Neo-Marxist investment strategy.”
Puzder has spoken at multiple ALEC meetings and drafted many of the anti-ESG bills the corporate bill mill has circulated since the summer of 2021, when it held its annual meeting in conjunction with the State Financial Officers Foundation, an association of right-wing state treasurers and other fiscal managers that is staunchly opposed to making decisions about public policy and funds based on factors such as climate change, equity and inclusion, and social justice.
At last year’s ALEC policy summit, Puzder compared the fight against ESG to his father’s generation’s fight against Nazism.
In addition to demonizing sustainable investing in his remarks last week, Puzder promoted the only anti-ESG model bill that has been approved by ALEC’s board of directors: the State Government Employee Retirement Protection Act. The bill, which he helped draft, prohibits anyone managing state, local, or university public pensions from considering the climate emergency or other social or political factors when investing pension funds.
Puzder also promoted anti-boycott bills that he refers to as “contracting legislation.” Originally called the Eliminate Political Boycotts Act but renamed at the December 2022 summit, this model bill bars companies with 10 or more employees from receiving state contracts if they take into account any “social, political, or ideological interests” to limit their commercial relations with fossil fuel, logging, mining, or agricultural businesses—and instructs legislatures to “insert additional industries if needed,” as CMD first reported.
ALEC’s board rejected the anti-boycott model due to opposition from the American Bankers Association, state bankers associations, and others.
‘Science of Reading’
ALEC lawmakers also considered passing The Science of Reading Act. This model bill would require all schools to adopt the “science of reading” method of instruction in place of older approaches to teaching students how to read, prohibit the use of any other reading curricula, and require all new teachers to take 80 hours of additional training “aligned with the science of reading.” The training must be “provided by an organization accredited by the International Dyslexia Association”—which offers a clue as to which special interests likely drafted the model bill, something ALEC keeps secret. This is totally at odds with the National Center on Improving Literacy, which maintains that the “science of reading” is a body of research and not “a program, an intervention, or a product you can buy.”The bill does not include language on funding.
The unfunded “science of reading” curriculum has proven to be difficult to roll out and expensive to implement for school districts in states where this new reading program is mandated by law. Education scholar Diane Ravitch argues that there is no such thing as “the science” of reading. “There are better and worse ways of teaching, but none is given the mantle of ‘science,’” Ravitch points out. “Calling something ‘science’ is a way of saying ‘my approach is right and yours is wrong.’”
Energy and the Environment
ALEC politicians in the Energy, Environment, and Agriculture Task Force meeting debated An Act to Prevent Lawsuit Abuse Regarding Ethylene Oxide Emissions, which would protect medical device manufacturers and distributors from potential lawsuits that may stem from a new rule from the Environmental Protection Agency regulating emissions of the cancer-causing chemical.
This may also suggest a renewed interest from ALEC in pushing its 2018 model policy designed to criminalize and quell environmental protests in and around fossil fuel infrastructure.
City and Local Model Bills
ALEC’s sister organization, the American City County Exchange (ACCE) also introduced a couple of model bills to attendees.
The Homelessness Crisis Mitigation Act would prevent cities or towns within a given county from addressing the critical needs of the unhoused “without first entering into a shared services agreement with [COUNTY] to provide said services.” This would create a significant hurdle for social service agencies and possibly prevent shelters or other temporary housing options from being offered to those in need.
The Local Taxpayer Protection Act would require the vote of two-thirds of a county legislature in order to increase property taxes, raising the threshold needed and making it more difficult for counties trying to finance policies and programs unfunded by state legislatures.
Gutting Regulations
In the Commerce, Insurance, and Economic Development Task Force, members considered the Regulatory Sunset Act, which calls for any rule or regulation enacted or amended after the model’s passage to be terminated after five years and gives the legislature power to control any renewals. Regulatory agencies would have to notify the legislature a year in advance and provide a cost-benefit analysis for each regulation they wish to renew. This would create an extensive amount of additional work for state agencies and state legislatures, many of which operate part-time, and put health, environmental, workplace, and other regulations that keep Americans safe at risk of lapsing.
Other new model policies considered at the ALEC summit include: