Do I Detect a Pattern? Congressional Inaction on TSCA Leads to Scattershot State Regulation


Yogi Berra is credited with the phrase “déjà vu all over again.” Today’s environmental law manifestation of Yogi’s phenomenon stems from the current gridlock in Congress. A story last week in the Daily Environment Report noted that, following Congressional failure to enact TSCA reform, 30 states (give or take, apparently) have either passed some kind of chemical management law or issued an executive order addressing the issue of toxics control.

And thus we have a result that pleases no one. Environmentalists are upset because there is still no comprehensive reform – 20 states (give or take!) do not have toxics regulation. Manufacturers and many end users of chemicals are upset because they now must comply with a patchwork of state laws.

Where have I heard this before? How about the regulation of greenhouse gases. Anyone think state or regional solutions to a global problem are the way to go?  There are of course other examples, but this blog is not the place for a comprehensive list.

There is a solution to this problem. The Founding Fathers actually came up with it some time ago. It’s called the Commerce Clause. It’s worked in a lot of areas. A compromise is reached on comprehensive federal regulation, and state laws get preempted. 

Of course, manufacturers are still unhappy, because the federal regulations are probably too stringent, and environmentalists are unhappy, because more stringent state regulations have been preempted, but would anyone seriously argue that that would be a worse result?  Leave it to Congress to come up with a negative sum solution.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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