By Melanie Condon and Susan Frederick
Senator Michael Moore (D-Mass.) braved the dreary D.C. weather Tuesday morning to support state authority during his testimony before a U.S. House of Representatives Energy and Commerce Subcommittee on Chairman John Shimkus’ (R-Ill.) proposed Chemicals in Commerce Act (CICA).
The draft legislation would reform the federal regulatory structure of toxic chemicals in the U.S., which has not been reformed since the Toxic Substances Control Act (TSCA) was enacted in 1976. Unfortunately, CICA would divest states of the authority to regulate new chemical substances by shifting this responsibility solely to the EPA, and would pre-empt existing state laws that regulate toxic chemicals. NCSL submitted a letter to the full committee last month opposing CICA for these reasons.
Shimkus released an updated draft of his Chemicals in Commerce legislation ahead of Tuesday’s hearing. The new draft, however, still contains harmful preemption language that would impede states’ abilities to protect their residents from toxic chemicals. In fact, the draft legislation language is so broad, NCSL is concerned it could also affect other state environmental protection laws. In the words of Senator Moore, testifying on behalf of NCSL, the legislation would impose a “one-size fits all approach to toxic chemical regulations” that would negate all state action that has already taken place to protect the health and welfare of their citizens.
Moore told the subcommittee that while TSCA reform is sorely needed, it cannot come at the expense of state sovereignty. He stressed that states have a history of working cooperatively with the federal government in environmental regulation and that Congress should not bar states from enacting complementary state laws to federal environmental policy.
Moore referred members of the subcommittee to NCSL’s long-standing policy on environmental federalism that recognizes the need to preserve and strengthen uniform minimum federal standards for environmental protection while maintaining statutory authority for states to enact state environmental standards that are more stringent than minimum federal standards.
Through his years of experience protecting the environmental health of Massachusetts as an environmental police officer working directly for the Massachusetts attorney general, Moore was able to provide to the members of the subcommittee real life examples of Massachusetts laws that have protected its citizens yet would be negated if CICA were to be enacted, such as a ban on mercury.
The Senate is also working on reforming TSCA, through S. 1009, the Chemical Safety Improvement Act, which was introduced by Senator David Vitter (R-La.) last summer. NCSL opposed the preemption language of S. 1009 in a letter to the leaders of the Senate Environment and Public Works Committee, Senator Barbara Boxer (D-Calif.) and Vitter back in July 2013.
While everyone agrees that TSCA should be reformed and modernized, the devil is surely in the details as nobody can agree exactly how this should be done. NCSL staff will continue to work with Congress to provide expertise and advice as the House and Senate develop appropriate statutory language that modernizes TSCA while respecting state laws that address chemical regulation.
Melanie Condon is a policy associate and Susan Frederick is senior federal affairs counsel in NCSL's State-Federal Relations Division.
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