California Attorney General Kamala Harris and eleven State Attorneys General are urging Congress to limit any preemption of states’ legal authority to protect their citizens and the environment from toxic chemicals when reconciling the bills passed by the House and Senate to reform the Toxic Substances Control Act of 1976 (TSCA).
The Attorneys General have expressed concerns about differences between the two bills that might lead to unintended consequences.
Harris and the state Attorneys General annunciated seven principles regarding the complementary roles that the states and the federal government must play, and historically have played, in chemical regulation.
The letter focuses concern on ambiguity in the Senate bill about the timing of preemption and the requirements for states to obtain a waiver.
The main difference between the House and Senate bills is the extent to which they address the states’ preemption concerns.
Harris cited California’s long history as a leader in environmental protection.
She observed that “California’s environmental standards lead the nation in protecting our residents from harmful chemicals and pollutants, and my office has fought diligently to enforce them,” Harris said. “As Congress moves closer to reforming the Toxic Substance Control Act, it is critical that states’ ability to protect communities from toxic chemicals is not preempted.”
The letter notes that while the TSCA reform bill passed in the House avoids potential regulatory void preemption by providing a traditional two-part waiver standard that the federal government, states and the courts are familiar with.
The language in the Senate’s bill does not clearly set out how co-enforcement would work under the final TSCA bill, and introduces the risk of regulatory void preemption and unnecessarily complicates the waiver process, the Attorneys General argue.
There are seven core principles regarding the state-federal relationship in TSCA reform that the Attorney Generals had expressed in prior letters and hearing testimony. The state prosecutors believe it is crucial to limit preemption to the greatest extent possible and succeed in encouraging an appropriate, beneficial government partnership in chemical regulation to protect the public health and environment both when EPA has access to adequate resources and when the agency does not enjoy such resources:
1. States should not be preempted until EPA has taken a final action;
2. Once EPA has taken a final action, the scope of state law preempted should be no broader than the scope of EPA’s action;
3. States should not be preempted from continuing to establish requirements on chemicals pursuant to longstanding state laws;
4. States should not be preempted from continuing to enforce existing requirements on chemicals;
5. State laws related to water quality, air quality or waste treatment or disposal should not be preempted;
6. States should be able to obtain a waiver to adopt requirements that are more protective than EPA’s if the requirements do not unduly burden interstate commerce and do not make it impossible to comply with both state and federal law; and
7. States should be able to keep “cops on the beat” to co-enforce requirements that have been adopted by EPA.
The letter notes that the House and Senate have recently made “significant progress with respect to some of the Attorneys General’s principles regarding the state-federal relationship.
Some key changes to the Senate bill make it possible for states to co-enforce federal standards by adopting identical requirements in state law. Both versions of the bill also preserve longstanding state chemicals programs such as California’s Proposition 65 from preemption, and exempt from preemption state water quality, air quality and waste treatment or disposal laws.
The letter provides recommendations for reconciling the language between the House and Senate bills for each of the seven principles outlined.
California is joined by Attorneys General from Oregon, Hawaii, Maryland, Iowa, Massachusetts, New Hampshire, New York, Rhode Island, Vermont and Washington.