Bipartisan compromise will strengthen chemical safety laws

With 20 years of experience in environmental law and unique experience at the state level as a former director of the California Department of Toxic Substances Control, I am one of the many supporters who view the CSIA as a historic opportunity for reform.  It is rare for Congress to act in a bipartisan manner, rarer still on environmental issues.  Yet, the principal co-sponsors of the legislation, the late Sen. Frank R. Lautenberg (D-N.J.) and Sen. David Vitter (R-La.), have developed legislation that would grant the federal EPA new authorities to review nearly every chemical currently in use.

Despite this remarkable breakthrough after years of stalemate, opponents have emerged saying that the bill doesn¹t go far enough.  Among their arguments is the claim that the bill would weaken existing state regulations by broadly preempting state chemical programs and laws.  California¹s chemical laws, which implement the Green Chemistry Initiative, a program I helped develop and launch in 2006, are often cited as the most extreme examples.  

California¹s chemical safety law and other state laws regulating chemicals around the country are meant to protect state citizens from potentially harmful toxics and encourage the adoption of new, more sustainable chemistries.  The reason many states got into the business of chemical regulation was not necessarily a desire to layer onto existing federal chemical regulatory programs, but out of concern over the lack of effectiveness of the federal oversight of chemicals under TSCA.  As a former state chemical regulator, I believe that all states, including those states that have passed chemical laws of their own (even California) should welcome the prospect of a far more effective federal regulatory program.

{mosads}Furthermore, claims about the legislation¹s broad preemption of state laws have been vastly overstated and misunderstood.  The CSIA will not result in a sweeping overhaul of any state programs. It will not affect state laws pertaining to clean air, water, waste treatment or disposal.  It will, where the EPA acts on a specific chemical, allow the EPA decision to take precedence in order to create a coherent unified national approach to managing chemicals.  In fact, all existing state laws, including California¹s chemical safety laws will remain intact.   

The legislation recognizes the important role of states, giving their views and concerns priority in EPA decision-making and providing multiple opportunities for states to engage in EPA¹s prioritization, safety assessment and safety determination for chemicals under review.  The CSIA also provides EPA with the authority to grant a state a waiver from preemption if circumstances warrant it.  In practice, with state and federal agencies working in coordination, the added resources and expertise will accelerate the quantity of chemicals undergoing review, the quality of those reviews and ultimately improve chemical and consumer product safety across the country.

This is good news for all citizens in all states, whether they have existing chemical laws or not.  A strong national program will enhance state programs, and allow states to focus their often-strained resources on state priorities.  The federal government can bring critically needed resources and expertise to the highly complicated and expensive process of chemical risk assessment and regulation. And families in every state can be more confident that the products they use every day are safe for their children and their communities.

Gorsen is an environmental attorney and partner at Alston & Bird, based in Sacramento.  She has served as the deputy secretary of Law Enforcement and Counsel for the California Environmental Protection Agency (Cal/EPA), general counsel of the California Natural Resources Agency, and as the director of the California Department of Toxic Substances Control.