Private Empire: ExxonMobil and American Power (65 page)

In Europe, the precautionary principle won out. Although a European Chemicals Bureau study found that “no risk reduction” was required for DINP, in 2005, the European Union nonetheless banned the compound from children’s toys that could be placed in the mouth. “Politics, not science, is the reason,” the ExxonMobil PowerPoint slides circulated in Washington complained. “Politics,” however, was in fact a synonym for the rise of the precautionary principle as a popularly supported basis of chemical regulation in Europe—and there was little reason to believe that philosophy would remain sequestered there.
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American environmental and public interest health groups had discovered that it was easiest to import European regulations inspired by the precautionary principle into the United States by starting first in the legislatures of more liberal states—California and Vermont, for example. The City of San Francisco formally adopted the precautionary principle as a framework for local regulations in 2003. The city’s environmental regulators “discovered Europe has banned chemicals that the U.S. had not,” a city environmental regulator recalled. “We said, ‘If other governments have taken precautionary actions, then we can take that action as well.’” San Francisco adopted a phthalate ban that “precisely mirrored” the European ban.
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Legislators in the state capital of Sacramento promptly introduced proposals for a statewide phthalate ban. The Breast Cancer Fund, the Public Interest Research Group, the Natural Resources Defense Council, and other public interest health lobbies jumped in. Scientists and advocates at these groups had followed the phthalate issue since their failed effort to win a DINP ban at the Consumer Product Safety Commission during the late Clinton administration. The phthalate issue offered “a way to highlight the broken chemicals policy system that we have—to get people to pay attention to it because it’s toys, it’s things babies are putting into their mouths,” recalled Gretchen Lee Salter, a policy manager at the Breast Cancer Fund. California legislators, urged on by public interest advocates like Salter, enacted the European Union standard in 2007. Minnesota, Connecticut, and Vermont legislators moved to do the same.
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ExxonMobil became alarmed enough to start lobbying directly in state capitals. “The one lobbyist we did hear from” was from ExxonMobil, recalled Virginia Lyons, a biologist and legislator who sponsored Vermont’s ban. ExxonMobil’s local advocate “stirred up the fishing and hunting community by saying if phthalates were banned in the state of Vermont, then fishing would be affected” because lures were made of soft plastics. In fact, the Vermont bill did not address fishing lures at all, only toys. Lyons finally outflanked the ExxonMobil lobby by adding to the final version of the bill a line declaring that nothing in the new law “should be construed to regulate firearms . . . hunting or fishing equipment.” In Hartford, Connecticut, chemical industry lobbyists walked through the statehouse with Gumby toys in their pockets. They would grab a lawmaker, pull out the toy, and declare ominously, “They’re going to ban Gumby!”
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The wave of phthalate regulation at last rolled into Washington in 2008. Breast Cancer Fund lobbyists briefed U.S. senator Dianne Feinstein about the issue, noting the San Francisco ban already enacted and the similar bill passed by the California legislature, which awaited action by Governor Arnold Schwarzenegger. Senator Feinstein saw an opening to advance the cause in Congress.

She owed that opportunity to unscrupulous toy makers in China. In 2007, Mattel, Inc., had recalled 967,000 toys—an Elmo Tub Sub, a Dora the Explorer backpack, and Giggle Gabbers shaped like Sesame Street’s Cookie Monster and Elmo, among them—because the toys contained lead paint. China increasingly was the source of the toys America’s children played with. The Mattel recall was just one in a series of revelations about the shoddy quality of some Chinese toy manufacturing. China bashing and child safety being two of the less controversial subjects in American politics, federal lawmakers scrambled to introduce bills that would tighten standards for the toys that American children enjoyed. As a Senate version of this toy safety bill glided toward passage early in 2008, California’s two senators, Feinstein and Barbara Boxer, slipped in a floor amendment that incorporated a version of the European Union’s phthalate regulation—one that would prevent American children from putting DINP-laden vinyl ducks into their mouths. The bill passed easily. It is not clear whether ExxonMobil’s Washington office even understood what had happened until it was too late.
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The U.S. House of Representatives, now controlled by Democrats, also passed a companion toy safety bill. (It became known as the Consumer Product Safety Improvement Act of 2008.) The House version, however, did not address the phthalates question at all. The matter would be decided in a conference committee organized to reconcile the two bills for final passage. President Bush was unlikely to veto legislation designed to keep American children safe from faulty Chinese toys, so by the spring of 2008, it seemed clear that a final law would indeed be written, passed by both houses of Congress, and signed by the president. The question that mattered to ExxonMobil Chemical was whether that bill would ban DINP from toys.

ExxonMobil and public health lobbyists had been battling one another inconclusively over phthalates for a decade. The corporation’s scientists had prevailed in the technocratic, relatively closed forum of the Consumer Product Safety Commission. Congress was a different venue, one that favored the public interest groups. Anticipating an intense summer of lobbying and a public relations struggle, the advocates at the Washington, D.C., offices of the Public Interest Research Group reached deep into their bag of advocacy tricks. They manufactured a twenty-five-foot-high inflatable rubber duck; they then carted the giant duck to Capitol Hill, to call attention to their sign-waving street demonstrations in favor of a DINP ban. In addition to the big duck, ExxonMobil’s interest in the legislation was identified early on as an element of the public interest group’s lobbying strategy. Noted Liz Hitchcock, one of the campaigners, “They’re the perfect villain.”
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J
oe Barton, the Republican congressman who represented Texas’s Sixth District, which lay just to the south of Dallas, bore a resemblance to Rex Tillerson, both in appearance and by his biography. Barton had been born in Waco, Texas, in 1949, three years before Tillerson’s birth in Wichita Falls, two hundred miles away. Now in his late fifties, Barton combed his full head of silver hair in a style similar to that favored by ExxonMobil’s leader; his face was similarly fleshy but fit looking. Barton’s political creed had been derived from the same rural ethos that had shaped Tillerson’s rise—a synthesis of Christianity, small-town values, and faith in free markets. A sign in Joe Barton’s Capitol Hill office reads “Trust God; Tell the truth; Make a profit.”

Barton had studied industrial engineering at Texas A&M University on a scholarship, then earned a master’s degree in industrial administration from Purdue University. He worked in business for a decade and served as a consultant on gas deregulation issues for Atlantic Richfield Company, the large oil and gas company eventually absorbed by BP. By 1984, Barton was “an earnest man of thirty-five who had a strong desire to go to Congress and negligible prospects of getting there,” as Mark Halperin and John F. Harris later wrote in their book,
The Way to Win
. But Joe Barton then made an excellent decision: He hired an Austin political consultant named Karl Rove to handle his direct mail as he challenged a better-known and better-funded opponent, Max Hoyt, in the Texas Sixth’s Republican primary. Rove crafted mailers touting Barton as a “Proven Cost Cutter” who was “Educated to Lead” and had “Roots in Texas.” He won—and after Barton reached Washington, he stayed.
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Barton rose to chair the powerful House Energy and Commerce Committee, which had long been the domain of Democratic representative John Dingell, of Michigan. Barton and Dingell swapped gavels as Republicans and Democrats traded control of the House. Barton fashioned a reputation as the leading expert on oil and gas issues in the House Republican caucus—he was a passionate believer in markets, but occasionally, too, a deal maker who could find legislative compromises with Dingell, who fiercely protected in Congress the interests of automakers and other industrial corporations in Michigan.

Barton’s relationship with ExxonMobil was strong. In the years after the Mobil merger, Barton received more money from the ExxonMobil Political Action Committee than any other member of Congress—a total of $46,399. In general, ExxonMobil’s K Street crew appreciated the Texas congressman’s pro-market philosophy. In 2005, however, Barton had been infuriated when Lee Raymond and Dan Nelson, the ExxonMobil Washington office chief, declined to support a deal Barton had proposed to Dingell and other lawmakers to pass comprehensive energy legislation of the sort originally contemplated by Vice President Cheney’s energy task force, but which had proved politically elusive during the first Bush term. One element of the 2005 deal was a prospective agreement by Congress to absolve oil companies from certain legal liabilities arising from spills of gasoline containing MTBE. (The deal was proposed just a year before ExxonMobil’s disastrous spill of MTBE-laden gasoline at its gas station in Jacksonville, Maryland.) In exchange for legal protection, ExxonMobil and other oil companies would contribute to a $4 billion fund to pay nationwide MTBE cleanup costs. Barton thought he was close to an agreement to ensure payments to the fund, but Chevron, ExxonMobil, and the American Petroleum Institute balked. On the decisive weekend of negotiations, ExxonMobil’s representatives, led by Dan Nelson, declared that the bill was just too much of a Washington mess for the corporation to support. Lobbyists for the major oil companies later said they had warned Barton that they would not pay more than $1.5 billion into the proposed cleanup fund. In any event, Barton was unhappy. He pulled all provisions for MTBE protections from the final bill and later issued a public letter protesting Lee Raymond’s retirement package: “While we respect the right of corporations in America to set compensation packages as they see fit, it is hard to understand how, in light of most Americans paying nearly $3.00 per gallon at the pump, your board of directors can justify such an exorbitant payout.”
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In 2008, as the lobbying fight over DINP and rubber ducks loomed, ExxonMobil needed Joe Barton again. Whether the final toy safety bill contained a Europe-inspired phthalate ban was a question that would now fall to Dingell and Barton. In 2007, after Democrats retook majority control of the House of Representatives, Dingell had ascended again to chair the Energy and Commerce Committee; Barton had returned to the role of ranking member, the committee’s senior Republican. Because of the toy legislation’s subject matter, members of the House Energy and Commerce Committee would staff the conference to determine the bill’s final compromises. In theory, Dingell could go his own way, without including Barton, and then try to rely on the Democratic majority in the House to approve the final bill. But once the conference opened in June 2008, Dingell insisted that Barton sign off on the phthalate issue, whatever the final compromise turned out to be. Dingell was an old-school legislator who believed in forging agreements that made nobody happy and preferred when possible to work across the aisle. Also, ExxonMobil had supported Dingell over the years with steady campaign contributions. The corporation lobbied him and Barton simultaneously on the phthalate question. In any event, it would be better for Dingell if he had Barton’s political cover on any final decision that favored ExxonMobil.

The Senate bill’s phthalate provisions had effectively been written by two California liberals, importing European regulations. Dingell told his staff as the talks began that he would go along with whatever compromise Barton endorsed—but they had to keep the Texas Republican on board or there would be no deal. Barton, for his part, announced through his staff that he was simply not prepared to accept a ban on DINP in children’s toys in any form.

“You’re going to have to roll me,” Barton told Dingell at one bicameral meeting.

“My friend,” Dingell replied, “I don’t want to have to do that.”
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The stalemate took hold as summer descended—it was the capital’s humid swamp season. ExxonMobil’s Washington lobbying crew moved through Capitol Hill, seeking out the conferees and their staff. One Democratic lawyer on the staff of an Energy and Commerce member recalled “six old white guys in gray suits” who came to her office to hand out PowerPoints about phthalates. The essence of their presentation was, “DINP is not dangerous,” she recalled, and that “they didn’t want DINP singled out.” The ExxonMobil lobbyists carried props designed to win the attention of young Capitol Hill staffers: iPod earbuds, which were made of materials softened by DINP. The message was that “phthalates are not harmful,” recalled Valerie Baron, an Energy and Commerce Committee staffer who heard the briefings, “
and
they’re in so many things, what would we even do without them? What would you do without your iPod headphones?”

The Senate bill banned six phthalates outright, but “DINP was the one that was most in play” during the conference negotiations, recalled a staffer involved in trying to write a final agreement. ExxonMobil’s strategy focused heavily on presenting the history of scientific studies and risk analysis of phthalates, to emphasize that the evidence about DINP was far from definitive.