Attorney General Kamala D. Harris and 11 Attorneys General Urge Limiting Preemption of State Protections Against Toxic Chemicals in Reconciliation of TSCA Reform Bills

SAN FRANCISCO – On Tuesday, Attorney General Kamala D. Harris and eleven State Attorneys General urged Congress to limit any preemption of states’ authority to protect their residents and the environment from toxic chemicals when reconciling the bills passed by the House and Senate to reform the Toxic Substances Control Act of 1976 (“TSCA”).  The Attorneys General also commended members of Congress for undertaking efforts to improve the TSCA and for their progress in moving the bill closer to final passage.

In the letter, the Attorneys General set forth seven principles regarding the vital, complementary roles that the states and the federal government must play, and historically have played, in chemicals regulation.  The letter notes that in a few areas of core priority to the Attorneys General, such as the timing of preemption and the requirements for obtaining a waiver, the bills differ in the extent to which they address the states’ concerns.

“California’s environmental standards lead the nation in protecting our residents from harmful chemicals and pollutants, and my office has fought diligently to enforce them,” said Attorney General Harris.  “As Congress moves closer to reforming the Toxic Substance Control Act, it is critical that states' ability to protect communities from toxic chemicals is not preempted.”

As the letter notes, existing TSCA and the House Bill avoid problematic “regulatory void preemption,” and provide a traditional two-part waiver standard that the federal government, states and the courts have ample experience implementing.  In these areas, the Senate’s language introduces the risk of regulatory void preemption and unnecessarily complicates the waiver process.

In other areas, the letter explains that both the House and Senate have made significant progress in addressing the Attorneys General’s principles regarding the state-federal relationship.  For example, both bills allow states to co-enforce federal standards through the adoption of identical requirements in state law; preserve longstanding state chemicals programs such as California’s Proposition 65 from preemption; and exempt from preemption state water quality, air quality and waste treatment or disposal laws.  In each of seven areas, the letter offers specific reasoning and recommendations for reconciling the language of the House and Senate Bills.

California was joined by Attorneys General from Hawaii, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Oregon, Rhode Island, Vermont and Washington in submitting this letter to Congress.

The Attorneys General letter can be found attached to this release at www.oag.ca.gov/news