What Are Preemptive Laws?
“Preemption” refers to the power of a particular level of government to restrict the powers of subsidiary governments, that is, those lower in the hierarchy of a federal system such as we have in the United States.
There are two concerns around preemption in the current state of US laws regulating pesticides and toxic chemicals:
- In all but seven of the fifty states, municipal and county governments are prohibited, by preemption statutes at the state level, from placing greater restrictions on the use of pesticides and chemicals than are in effect at the state level. This is referred to as state preemption. Illinois has a preemptive statute that includes a “home rule” exception for the City of Chicago. In recent years, attempts have been made to broaden the exception for municipalities above a certain population size. We believe that the state’s preemption statute should be repealed for the benefit of all local governments in Illinois. For an overview and history of state preemption, read this 2013 Fact Sheet by Matthew Porter of Beyond Pesticides.
- Federal regulation of chemicals, under the Toxic Substances Control Act of 1976 (TSCA), has historically been very weak. This left the regulatory field open for the states, some of which have enacted progressive measures around the use and distribution of chemicals. As of April 2016, an effort to strengthen TSCA appears poised to success in Congress. Reform would grant new and expanded review powers to the US Environmental Protection Agency, but also includes federal preemption of state regulation related to substances that are under review by EPA. Many people and agencies are concerned that these reviews might stretch out over years, or that the review process may be “captured” by the chemical industry. Two excellent sources of information on this issue are:
The Delay Game: How the Chemical Industry Ducks Regulation of the Most Toxic Substances, written by a team of staffers from the Natural Resources Defense Council that includes an attorney and a scientist.