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State Attorneys General Push for Limited Preemption in TSCA Reform

As the House and Senate work towards reconciling their Toxic Substances Control Act modernization bills, the Attorneys General from 12 states continue to urge the legislators to limit the preemptive effect of an amended TSCA on a state’s authority to regulate chemicals.  The Attorneys General outlined their concerns in a January 19, 2016 letter to the Chairpersons of the Senate and House Committees leading the reconciliation efforts.

TSCA preemption of state law has long been a thorny issue with TSCA reform efforts.  Senator Boxer, who is former Chair and now Ranking Member of the Senate Committee on Environment and Public Works, has voiced strong opposition to any preemption provision that would erode state rights.  At least in part in response to that strong opposition, the most recent House and Senate bills, which take different approaches to preemption, would grandfather state laws existing as of August 1, 2015 — meaning that laws like California’s Proposition 65 and Safer Consumer Products Regulation would not be affected. Still, the bills’ preemption provisions contain some ambiguous language regarding their preemptive effect.

In the January 2016 letter, the Attorneys General from Massachusetts, California, Hawaii, Iowa, Maine, Maryland, New Hampshire, New York, Oregon, Rhode Island, Vermont and Washington outline “seven core principles regarding the state-federal relationship in TSCA reform”:

  • States’ authority to regulate should not be preempted until EPA has taken a final action;
  • Once EPA has taken a final action, the scope of state law preempted must be no broader than the scope of EPA’s action;
  • States should not be preempted from continuing to establish requirements on chemicals pursuant to longstanding state laws;
  • States should not be preempted from continuing to enforce existing requirements on chemicals;
  • State laws relating to water quality, air quality or waste treatment or disposal should not be preempted;
  • States should be able to obtain a waiver to adopt stricter requirements if certain conditions are met; and
  • States should be able to co-enforce requirements adopted by EPA.

The Attorneys General “believe that adherence to these principles is crucial to limit preemption to the greatest extent possible and succeed in spurring an appropriate, beneficial government partnership in chemical regulation.”  With Republicans controlling Congress, a continuing resistance to “big government” as seen in this election year’s Republican rhetoric, and legislator efforts to limit EPA’s authority by, for example, cutting funding — this may be these Attorneys General’s best opportunity to limit preemption in a modernized TSCA.

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.