California Chemicals Regulation After TSCA Reform

by Claudia Polsky^*

Claudia Polsky

In June 2016, the 114^th Congress defied reputation and expectation by engaging in an act of serious, substantive, bipartisan lawmaking. The passage of the Frank R. Lautenberg Chemical Safety for the 21^st Century Act (Lautenberg Act), on a near-unanimous vote,¹ brings significant strengthening changes to the foundational federal law governing toxic chemicals in commerce: the Toxics Substances Control Act (TSCA).² In signing the bill, President Obama hailed the legislation as finally enabling the U.S. to "actually regulate chemicals effectively," insuring that Americans would not be rendered ill by everyday products like "mattresses and laundry detergent," and protecting "the health of our kids and our families."³ In California, however, the celebration has been muted. That is because passage of the legislation was purchased, in part, at the cost of states’ own abilities to regulate chemicals.

In reaching the political compromises that led to the Lautenberg Act’s passage, the issue of preemption of state and local authority was among the most contentious. To a significant extent, it was the desire to create uniformity and predictability in chemicals regulation – to eliminate the proverbial "patchwork of state and local laws" – that brought the chemical industry and its legislative supporters to the negotiating table in the first place.⁴ The back-and-forth regarding numerous broadly preemptive provisions proposed in early versions of the Senate and House bills engendered substantial pushback from nonprofit organizations, state and local environmental agencies and, most conspicuously, numerous Democratic state attorneys general.