Nine state attorneys general sent a heated letter to Congress protesting ostensibly bipartisan federal legislation entitled the “Chemical Safety Improvement Act” that has a high potential of gutting a range of environmental protections. The letter protests “unduly broad” language that would preempt state laws and “seriously jeopardize public health and safety.”

The attorneys general of California, Connecticut, Delaware, Maryland, Massachusetts, New Mexico, Oregon, Vermont and Washington oppose S.1009, while recognizing the need for the federal government to rewrite the badly outdated and inadequate Toxic Substance Control Act. The Act has remained virtually the same for 40 years.

Under the Act, only 200 of the roughly 85,000 chemicals registered for use in the United States have been tested by the U.S. Environmental Protection Agency (EPA) and fewer than a dozen have been restricted.

The bill was co-sponsored by Republican Louisiana Senator David Vitter and Democratic New Jersey Senator Frank Lautenberg shortly before he died in June, and questions have been raised about whether the failing 89-year-old was fully cognizant of its features.

California Senator Barbara Boxer said on Thursday that she opposed the bill as written, especially those elements that would restrict states from passing their own, tougher regulations governing the thousands of chemicals that permeate our society. “If we don't fix these problems, we're not going to have a bill,” she said. Boxer is chairwoman of the Senate Environment and Public Works Committee.

Until recently, chemical and other related industries opposed federal laws governing their products, but have changed their tune since individual states have become more aggressive in overseeing their behavior. Conservative arguments about states’ rights trumping federal authority have morphed into an argument that allowing individual states to set policy preempts the authority of other states by pressuring industries to change on a national scale.

Thus, states’ rights advocates need federal legislation to protect their state’s rights at the expense of some other state’s rights.

The proposed legislation is overwhelmingly opposed by environmental groups. Their objections include a lack of protection for pregnant women and children, the absence of clear timelines for EPA action and no requirement that chemicals be found to be safe before manufacturing starts.

In a letter (pdf) to Boxer and Vitter, 34 law professors, legal scholars and public interest lawyers expressed “serious reservations” about a bill that “essentially preserves the same inadequate safety standard used in current law.” They said the bill would require the courts to use only determinations of chemical safety by the EPA, excluding all other evidence, while retaining the same “obstructive standard of judicial review” that excludes only the most damning EPA evidence.

They also see nothing remotely vague about what the legislation would. The bill would ban individual states from creating “new restrictions on the manufacture, processing, distribution, or use of a chemical that EPA has classified as high- or low-priority.” It would probably gut California’s landmark “Safe Drinking Water and Toxic Enforcement Act of 1986,” passed by the voters as Proposition 65.

“This preemption provision is sweeping in nature and raises serious questions as to whether states could even enact or continue to enforce laws that simply require companies to disclose information about chemicals to consumers or require that products carry warning labels.”        

The legislation, as written, has the full support of the chemical industry’s principle lobbyist, the American Chemical Council, which calls it “a historic opportunity to act on behalf of the American people, American innovators and American businesses. We should not let this opportunity pass us by.”

-Ken Broder

To Learn More:

Lawmakers Gird for Overhaul of Out-of-Date Toxic Chemical Safety Rules (by Julian Hattem, The Hill)

Barbara Boxer Pushes Ahead on Chemical Safety Law (by Carolyn Lochhead, San Francisco Chronicle)

Red States Fixin’ to Gut Progressive California Laws (by Chuck McFadden, Calbuzz)

New Alliance Emerges to Tighten Chemical Rules (by John M. Broder, New York Times)

Wave of Opposition to Senate Chemicals Bill Swells from Public Interest Groups, Legal Scholars (by Sara Sciammacco, Environmental Working Group)

Nine Attorneys General Voice Strong Opposition to Chemical Safety Improvement Act (California Attorney General’s Office)