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New chemical regulation bill makes preemption 'impossible'

Chairman Henry Waxman (D-CA) of the House Energy and Commerce last week started the rolling on what's likely to be a year-long campaign to expand regulation of (and no doubt litigation against) the chemical industry and companies that use chemicals in their products. The legislative vehicle is H.R. 5820, the Toxic Chemicals Safety Act, an update of the 1976 law that gave the EPA authority "to require reporting, record-keeping and testing requirements, and restrictions relating to chemical substances and/or mixtures."

The new bill was introduced on July 22 and announced in a release, "Chairmen Rush, Waxman Release H.R. 5820, The Toxic Chemicals Safety Act." Rush is Rep. Bobby Rush (D-IL), chairman of the Subcommittee on Commerce, Trade, and Consumer Protection that will first consider the bill. He said, "The introduction of this legislation marks a major step forward in our efforts to bring to current industry standards an important statute that, once it becomes law, will permanently shine the bright light of public disclosure on a range of chemicals that consumers encounter in a diverse array of products they use each and every day."

Sec. 2617 of the current law gives the EPA broad authority to preempt state and local regulations of covered chemicals through orders and the agency's rule-making process. Not so in the Waxman/Rush version. From the text of H.R. 5820:

Section 18 of the Toxic Substances Control Act (15 U.S.C. 2617) is amended to read as follows:


'Nothing in this Act affects the right of a State or political subdivision of a State or a tribe
to adopt or enforce any regulation, requirement, or standard of performance
that is different from or in addition to a regulation, requirement, liability,
or standard of performance established pursuant to this Act unless compliance
with both this Act and the State or political subdivision of a State or tribe
regulation, requirement, or standard of performance is impossible.'.

Note that language: "is impossible." It's as if the litigation lobby had written the language to prevent any and all federal preemption.

Chairman Rush's subcommittee holds the first House committee hearing on the bill Thursday, July 27. Details here.

For purposes of disclosure: The National Association of Manufacturers, my employers, issued a statement upon introduction of the bill, "Manufacturers Concerned With Toxic Chemicals Safety Act."

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.