Richard Denison, Ph.D., is a Lead Senior Scientist.
[*UPDATED 5-8-15: This is a new version of an earlier post that I’ve updated to reflect changes made to the preemption provisions in the bill as reported out by the Senate Environment and Public Works Committee on April 28, 2015.]
By far the most difficult and contentious aspect of the debate over reform of the Toxic Substances Control Act (TSCA) is the extent of federal preemption of state authority. The range of positions on this is truly gigantic, from zero preemption at one end of the spectrum to full-field preemption effective upon enactment (the position espoused by some in industry).
The Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) has landed somewhere in the middle of this spectrum, with some stakeholders saying it still goes too far and others saying not far enough. And wherever you land on that question, it should be acknowledged that preemption in the bill is more extensive than under current TSCA, but much less extensive than it was in the predecessor to the Lautenberg Act, 2013’s Chemical Safety Improvement Act (CSIA).
There has been a lot of confusion surrounding preemption in the Lautenberg Act. So in this post, I describe how preemption works under the bill, and what is and is not preempted.
In the sidebar is a summary of the key preemption provisions of the Lautenberg Act. The rest of this post is a deeper dive for those who want one.
Preemption under the Lautenberg Act
The first thing to recognize is that any preemption that applies is always chemical-specific and directly matches the nature and scope of the triggering federal action. That is, preemption attaches only when EPA acts on the same chemical that has been or would be subject to a state action, and only when EPA considers the need for or takes the same type of action as has been or would be taken by a state. And preemption is limited to the scope of the EPA action (for example, the specific uses of a chemical considered by EPA).
Outside of these boundaries, states are free to act on chemicals. The new system would be similar to the current system except when EPA decides a chemical is a high priority and may require federal action.
Below I discuss the major components to the preemption provisions of the Lautenberg Act.