The New Toxic Substances Control Act: How Will Federal Preemption Affect California Laws?
by Corrie Plant* and Krista deBoer**
The significant overhaul of the Toxic Substances Control Act two years ago was the first major federal environmental law passed since 1990. Remarkably, TSCA reform had bipartisan support and was largely supported by not only the chemical industry and the business community, but also many environmental groups. EPA is now beginning to implement the "New TSCA," the Frank R. Lautenberg Chemical Safety for the 21st Century Act (H.R. 2576), signed into law by President Obama in 2016 (15 U.S.C. 2601 et seq.).
Unlike other environmental statutes, TSCA regulates the manufacture, processing, distribution, and use of chemicals in products distributed nationwide, necessarily affecting interstate commerce. When Congress passed TSCA in 1976 it authorized the Environmental Protection Agency (EPA) to regulate chemicals in commerce that pose an unreasonable risk to human health or the environment.1 But for 40 years prior to the 2016 amendments, TSCA was considered to be mostly ineffectual. Only about 200 of the approximately 85,000 chemicals on the TSCA inventory or the tens of thousands in commerce were ever subject to assessment.2 Further, EPA lacked regulatory authority under the Act, and was required to take the "least burdensome" approach to chemical regulation.3
Under the New TSCA, EPA now has the authority to evaluate, test, and regulate the use of chemicalsâ and this expansion of federal authority comes amidst a rising tide of chemical-related consumer safety legislation being enacted by states. Consequently, those concerned that federal regulation still may not go far enough now ask: what remains the role of California and other states in regulating and potentially banning the use of chemicals they deem unsafe?