Environmental Law: A New Formula For Chemical Regulation?
The CSIA's stated policy goals include "promoting uniform protections" and "minimiz[ing] undue burdens on commerce" and state resources. To that end, CSIA's preemption provisions are broader than the TSCA's. Specifically, the CSIA would preempt existing and any proposed future state-level testing requirements or (after completion of EPA's safety assessment) restrictions on the manufacture, processing or distribution of a chemical substance.
Further, the CSIA would preempt proposed future state-level restrictions on the manufacture, processing, or distribution of chemical substances unless the state obtains a waiver from the EPA. It is important to note, however, that the CSIA would not preempt state regulations promulgated pursuant to other federal programs (e.g., Clean Air Act, Clean Water Act).
While the CSIA has attracted the support and attention of a broad base of stakeholders, key points of friction remain. The CSIA's preemption provisions are especially controversial and have been opposed by influential stakeholders, particularly from California. California has well-developed state programs regulating the manufacture and use of chemicals, some of which may be preempted if CSIA is enacted. Senator Barbara Boxer (D-Cal.) opposes the CSIA's preemption provisions, and as chair of the Senate Environment and Public Works Committee she is uniquely well-positioned to shape the debate going forward. We can expect wrangling over preemption provisions to shape how, and whether, the CSIA will go forward.•