Delays in EPA's Chemical Risk Analyses Invite State Regulations

Senior Policy Advisor Michal Freedhoff was cited in a Bloomberg Law article about federal preemption of state commercial chemical regulations and how 2016 amendments to the Toxic Substances Control Act (TSCA) have played out in practice. The U.S. Environmental Protection Agency (EPA) missed a deadline to preempt state rules, opening the possibility for lawmakers to implement their own regulations on more than a dozen chemical substances. Ms. Freedhoff, who helped negotiate the TSCA amendments, recalled that one of the main reasons chemical manufacturers supported them was to avoid a patchwork of state laws by authorizing increased EPA oversight. In the decade since, however, the changes have not worked as Congress intended; chemicals do not move predictably through the TSCA process, rendering some states to contemplate their own frameworks as well as overall decreasing industry regulatory certainty. As Ms. Freedhoff explained, the root of the problem is not a failure in preemption itself but rather a failure in execution of the law, especially in funding it.

"I don't think that anybody working closely on the law believed that states would stop regulating everything," she said, but "it's generally always going to be preferable to have the federal government do something that applies nationwide."

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