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Preemption Provision in Proposed Chemical Law Draws Ire from States

(Beyond Pesticides, August 5, 2013) Nine state Attorneys General sent a letter to the Senate Environment and Public Works Committee last week expressing their “deep concerns about unduly broad preemption language proposed in S.1009, the Chemical Safety Improvement Act [CSIA].” CSIA would amend the decades old (1976) U.S. chemical law, the Toxic Substances Control Act (TSCA), which in its current form requires absolutely no testing on chemicals (it does not cover pesticides) before they make their way onto the market. Manufacturers are only required to provide the U.S. Environmental Protechemicalplantction Agency (EPA) with 90 days premarket notification before a new chemical is introduced for public consumption. Even after entering the market, the testing and regulation thresholds for these chemicals are grossly inadequate. In the 37 years that TSCA has been in effect, only 200 of the 85,000 industrial chemicals that have ever been in use have been tested or regulated.

Many states have not waited for Congress to update these scant protections, opting instead for state reforms to address the potential risks of toxic substances. CSIA endangers the ability for states to enforce these laws, the Attorneys General letter says, explaining that, “Reforms that come at the cost of sweeping preemption of state authority –as in S.1009– do not advance the protection of our citizens’ health and the environment.”

The proposed law would prohibit judicial review of EPA’s designation of a chemical as “high” or “low priority.” In a dizzying catch-22, states would be unable both to challenge in court EPA’s designation of a chemical, and adopt and enforce new laws regulating these chemicals.  CSIA would prevent states from regulating chemicals months or even years before a single protective federal regulation becomes effective. This would leave an enormous safety gap -exposing human health and the environment to undue harm.

Under current TSCA provisions, after EPA has regulated a chemical states may adopt new laws or enforce existing laws regulating the same chemical without a waiver in many cases. The proposed legislation would eliminate many waiver-free regulatory paths for states – for example by preventing states from banning any chemical that EPA has already regulated. And, if states were to seek a waiver to allow them to enact regulations stricter than those imposed by EPA, under the new law they would be required to certify a “compelling local interest”; a phrase which state Attorneys General criticize as unclear and may create a complete barrier to state action.

In 2011, the first version of a TSCA reform bill, titled the Safe Chemicals Act, was introduced by the late Senator Frank Lautenberg. That bill would have instituted a risk assessment methodology, similar to the one used on pesticides today, which, in theory, requires chemical companies to prove that their products are “safe” for human health and the environment before allowed into commerce. Beyond Pesticides has long criticized the risk assessment methodology used by EPA under pesticide law, encouraging an alternatives assessment which creates a regulatory trigger to adopt alternatives and drive the market to go green. However, even the weaker risk assessment methodology in Senator Lautenberg’s Safe Chemicals Act had a tough time moving through Congress. In response, Senator Lautenberg, a Democrat, joined with Senator David Vitter (R-LA) to introduce CSIA earlier this year. But this law is being heavily criticized by states and environmental groups. States are concerned about the preemption issues discussed above, while environmental groups note that there would be little or no testing before a chemical is brought on to the market, no mandatory time table to regulate existing chemicals, and expansive provisions to curb the ability of individuals to pursue litigation in the form of toxic torts.

TSCA is a weak environmental law and, though supporters point to improvements, critics say CSIA would in fact scuttle the laws that states have enacted to fill the gaps left by federal regulators concerning human health and environmental protection. The history of federal environmental laws shows time and time again the importance of state authority to adopt more stringent standards to both fill gaps left by federal regulators and to encourage broader federal action to be more protective. As the Attorneys General letter states, “Uniformity of regulation should not be achieved by sacrificing citizens’ health and the environment… Innovative state laws often result in better regulation and more safeguards, particularly for vulnerable subpopulations such as children and pregnant women. State initiatives have served as templates for national standards.”

Lobbying for preemption laws is a tried and true practice of the chemical industry. Beyond Pesticides continues to fight against these restrictive policies, at both the state and federal level, which prevent localities from enacting important protections for citizens and the environment. In 2011, the Connecticut legislature introduced a bill to overturn the state’s preemption law governing pesticide use. In 2005, a landmark Supreme Court case, Bates vs. Dow Agrosciences LLC, affirmed the rights of private individuals to sue pesticide manufactures despite manufacturers claim that EPA’s pesticide labeling process under Federal Insecticide Fungicide and Rodenticide Act ensured the safety of their products. CSIA represents the latest industry-fueled overreach into localities’ and states’ ability to regulate toxic chemicals to protect their citizens and the environment.

Environmental Working Group’s Ken Cook in an interview with BillMoyer.com’s Theresa Riley summarized the impending negotiations well, explaining, “The silver lining here is that the industry has savagely attacked Frank Lautenberg’s bill for eight years, his previous efforts, but never offered anything in legislative language of its own. Now we have it. We see what industry really wants, and now the debate can really begin. There are going to be some fireworks. I don’t know if there’ll be legislation in the end that moves very far, but in that sense, it’s been a service to the debate to have this bill introduced, because now we know what we’re up against, what the strategy at least initially was, what they hope to get and what their priorities are. And we’ll see how far compromise can go when David Vitter is the one who has to approve all the amendments.”

Source: LA Times, BillMoyers.com

All unattributed positions and opinions in this piece are those of Beyond Pesticides.




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