(Beyond Pesticides, August 5, 2013) Nine state Attorneys General sent a letter to the Senate Environment and Public Works Committee last week expressing their â€śdeep concerns about unduly broad preemption language proposed in S.1009, the Chemical Safety Improvement Act [CSIA].â€ť 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 Protection Agency (EPA) withÂ 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, â€śReforms that come at the cost of sweeping preemption of state authority â€“as in S.1009â€“ do not advance the protection of our citizensâ€™ health and the environment.â€ť
The proposed law would prohibit judicial review of EPAâ€™s designation of a chemical as â€śhighâ€ť or â€ślow priority.â€ť 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. Â 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 gapÂ -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 legislationÂ would eliminate many waiver-free regulatory paths for states â€“ 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 â€ścompelling local interestâ€ť; 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 â€śsafeâ€ť 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,Â 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 Lautenbergâ€™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 sayÂ 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, â€śUniformity of regulation should not be achieved by sacrificing citizensâ€™ 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.â€ť
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 stateâ€™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 EPAâ€™s pesticide labeling process underÂ 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 Groupâ€™s Ken Cook in an interview with BillMoyer.comâ€™s Theresa Riley summarized the impending negotiations well, explaining, â€śThe silver lining here is that the industry has savagely attacked Frank Lautenbergâ€™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 donâ€™t know if thereâ€™ll be legislation in the end that moves very far, but in that sense, itâ€™s been a service to the debate to have this bill introduced, because now we know what weâ€™re up against, what the strategy at least initially was, what they hope to get and what their priorities are. And weâ€™ll see how far compromise can go when David Vitter is the one who has to approve all the amendments.â€ť
All unattributed positions and opinions in this piece are those of Beyond Pesticides.