Richard Denison, Ph.D., is a Lead Senior Scientist.
In the immediate aftermath of the Senate’s unanimous passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) on December 17, 2015, three of the key Democratic cosponsors of that bill – Senators Whitehouse (RI) , Booker (NJ) and Merkley (OR) – participated in a colloquy to discuss one of the most contentious – and widely misunderstood – provisions of the Senate bill: the extent to which it would preempt states from acting during review of a high-priority chemical by the Environmental Protection Agency (EPA).
That colloquy ran in the next day’s Congressional Record. I am including it at the end of this post in its entirety; it explains the Senators’ successful effort to limit preemption of state authority in the final bill – including by narrowing the conditions states must meet to act during EPA review of a chemical essentially to constraints on state authority already imposed by the U.S. Constitution. The Senators conclude: “Restoring the ability for States to protect their citizens while EPA assesses the safety of chemicals was one of the primary goals of our work to improve this bill and that has been accomplished under section 18(f)(2) of S. 697, as reported by the Environment and Public Works Committee. We believe this does, within the limits imposed by the Constitution.”
Although this preemption provision was narrowed in negotiations led by those Senators this past April, it is still being widely mischaracterized.
While that provision has received the most attention, there are many other facets to be considered in any comparison of preemption under the Senate and House TSCA reform legislation. Our analysis, provided here, concludes that neither bill is uniformly more or less preemptive than the other. The Congressional Research Service reached a similar conclusion.
And, of course, preemption is but one part of the legislation. Our summaries and detailed analyses and comparisons of the two bills are available here.
Excerpt from December 18, 2015, Congressional Record:
REQUIRED STATE PREEMPTION PROVISION IN THE FRANK R. LAUTENBERG CHEMICAL SAFETY FOR THE 21ST CENTURY ACT
Mr. WHITEHOUSE. Mr. President, today, with my colleagues Senator CORY BOOKER and Senator JEFF MERKLEY, I wish to discuss the Frank R. Lautenberg Chemical Safety for the 21st Century Act, S. 697. Some opponents claim it creates a regulatory void that will prohibit States from creating or enforcing State policies while EPA assesses chemicals for safety. We opposed the bill as introduced because that was the case. Since then, we worked together with Senators UDALL, VITTER, and INHOFE to restore the ability of States to protect their citizens while EPA is assessing chemicals by substantially shrinking the interim period of time where preemption occurs and by creating a straightforward waiver process.
Mr. BOOKER. The provision requires EPA to allow States to regulate hazardous chemicals while EPA assesses a chemical for safety if the proposed state regulation meets three basic criteria:
A, consistent with the dormant commerce clause of the U.S. Constitution, compliance with the proposed regulation will not unduly burden interstate commerce in the manufacture, processing, distribution in commerce, or use of a chemical substance;
B, compliance with the proposed regulation would not cause a violation of any applicable Federal law, rule, or order; and
C, the State or political subdivision of a State has a concern about the chemical substance or use of the chemical substance based in peer-reviewed science.
Given the importance of this provision and the role EPA will play in reviewing waiver applications, we asked EPA for its interpretation. EPA agrees that States will be exempted from preemption by meeting three criteria. The following are the relevant excerpts from EPA’s response:
Based on the bill reported on June 18, 2015, S. Rep. 114–67, the following is a summary of how EPA understands the Frank R. Lautenberg Chemical Safety for the 21st Century Act, FRL21, would operate with respect to the preemption of state law.
Required waivers under section 18(f)(2). These would be State requests for an exemption from preemption under section 18(b). EPA must grant this kind of waiver request if the State law for which waiver is sought would not unduly burden interstate commerce; the State law for which waiver is sought would not cause a violation of Federal law; and the State has a concern about the chemical substance or use of the chemical substance based in peer-reviewed science.
Mr. MERKLEY. Each of these standards has a constitutional foundation. The first reflects the restraints of the dormant commerce clause. The second reflects the Constitution’s supremacy clause. The third corresponds to the scientific factual predicate required to meet scrutiny under the due process clause, as not ‘‘arbitrary and capricious.’’ Restoring the ability for States to protect their citizens while EPA assesses the safety of chemicals was one of the primary goals of our work to improve this bill and that has been accomplished under section 18(f)(2) of S. 697, as reported by the Environment and Public Works Committee. We believe this does, within the limits imposed by the Constitution.