What’s New About the Revised TSCA – Toxic Substances Control Act
The National Law Review, 6/2/16
The Frank R. Lautenberg Chemical Safety for the 21st Century Act is expected to pass the Senate the week of June 6…
The preemption provision is the product of extensive and prolonged negotiation. It is not the broad preemption for which some in industry had hoped. For example, all state restrictions in effect on or before April 22, 2016 are exempt from preemption based on EPA actions under the amended TSCA, and Proposition 65 is also exempt even into the future. Other exemptions from preemption also apply, including for most state green chemistry laws. Even when preemption would apply, states can apply for a waiver. However, the preemption section does contain two remarkable provisions. One is the “high-priority pause,” i.e., limited preemption of new state restrictions while EPA considers whether it should regulate a high-priority substance. The other is that once EPA decides that a chemical does not pose an unreasonable risk under the conditions of use, both existing and future state restrictions for that chemical (within the scope of EPA’s review) are also preempted (subject to some exclusions), even though EPA’s decision means that it will not promulgate any new federal restrictions for the chemical. Both provisions are unique among federal regulatory statutes.
State environmental officials call on Congress to respect states’ role in chemical safety
Department of Ecology, State of Washington, 5/19/16
As state environmental officials, we are greatly concerned about pending TSCA reform legislation in the Congress that will restrict states’ abilities to protect their citizens from toxic chemicals. Unfortunately, the most recent agreement goes too far in preempting our states’ abilities to continue to protect our residents. To be clear, there are good elements in the legislation. However, state authorities are excessively and unnecessarily preempted, in exchange for the promise of federal protection that is too meager…
We urge those working on the bill to improve the provisions dealing with state preemption. This could include making waivers more accessible to states, preserving state abilities to ban chemicals (as currently exists under TSCA), and removing or reforming the proposed regulatory “pause” that blocks a state from regulating a chemical that the EPA is only examining. We appreciate the hard work that some members have already devoted to protecting state authorities, and urge final TSCA reform legislation to maintain states’ abilities to protect our citizens.
States, Cities Clash on Pay and Benefit Rules
The Wall Street Journal, 5/31/16
Shelburne vs Vermont Railway hearing ends
Shelburne News, 5/25/16
The US District Court trial pitting the town of Shelburne against Vermont Railway ended on Friday, May 20. Judge William K. Sessions gave lawyers for both parties ten days to submit any further legal memoranda they want considered in the case. After he receives all that information he will make his decision on whether or not Vermont Railway operated within the law when they began the process of building salt shed facilities last year. The town believes that Vermont Railway abused the federal preemption status allowed the railway; the rail company maintains that they operated within the law.
House Panel Keeps Trucking-Related Provisions in Transportation Bill
Transport Topics, 5/24/16
A Democratic push to undo trucking-related provisions from a fiscal 2017 transportation funding bill was soundly rejected during a House Appropriations Committee hearing on May 24…
Specifically, Price’s amendment would have removed a provision that aims to extend the prohibition on the 2013 changes to the 34-hour, hours-of-service rule for truckers. The amendment also would have removed a provision that would prevent certain states from enacting laws requiring companies to schedule meal and rest breaks for drivers…
“Some of these riders could serve to undermine safety and rollback work protections,” Price said, prior to the vote on his amendment…
Don’t strip cities of ability to regulate drones
The Orange County Register, 6/3/16
Unfortunately, California cities’ involvement in drone regulation could soon come to an abrupt end. Drone industry stakeholders have been hovering around the state Capitol in Sacramento for months, lobbying hard for statutory provisions that would pre-empt and invalidate all local drone laws. Advocates for these provisions argue that pre-emption is necessary to prevent what they characterize as a “patchwork quilt” of local laws that would be costly and difficult for drone operators to follow. These lobbyists’ efforts almost succeeded earlier this year when a sweeping pre-emption provision suddenly appeared in a pending drone bill, AB2320. The pre-emption provision was, fortunately, stricken, but this push for pre-emption is likely to resurface again.
Valero submits legal petition on crude-by-rail project
Valero Benicia Refinery on Tuesday submitted a petition to the Surface Transportation Board for an order on a legal issue surrounding the company’s proposed crude-by-rail project.
The petition is to get a declaratory order from the board to decide if the Benicia Planning Commission’s decision to deny the permit use application for the project is preempted by federal law.
Oil and Gas Industry Building War Chest to Fight Ballot Initiatives
Public News Service, 6/1/16
The oil and gas industry is gearing up to defeat several initiatives headed toward the November ballot that would allow [local] restrictions on fracking.
A coalition of industry, business groups and elected officials called Protecting Colorado’s Environment, Economy and Energy Independence has formed to block efforts such as Initiative 40, which would allow local control over drilling. Lafayette city councilwoman Merrily Mazza supports the measure.
“Whatever the local community decides that they want to do to protect their rights, then they have the ability to do that – free from state pre-emption,” she said. “That’s the standard way for the state to say, ‘No, you can’t do that.'”
Another state GOP end run — around local drone laws
Detroit Metro Times, 5/26/16
Imagine, for a moment, that you are a legislator working in Lansing. You’re presented with a lot of information on what the voters care about. Some things would probably leap out at you: For instance, according to the Gallup Organization, out of all 50 states,Michigan has the highest percentage of residents dissatisfied with local roads, at 35 percent. Michigan voters of both major party affiliations are expressing fears about the economic outlook. It doesn’t help that the way the state government has sicced emergency managers on cities, which resulted in the Flint water crisis, is driving doubts about the state government’s ability to do right by its citizens, financially and environmentally.
What would you do to reassure people that Lansing’s priorities are in order? What would be the single most important thing you could do?
Naturally, you’d introduce a bill to pre-empt local laws on drones.
Why Minneapolis sick leave is on shaky legal ground
Star Tribune, 6/2/16
Minneapolis no doubt will argue that the ordinance is localized to jobs within the city limits. But the ordinance works to guarantee sick leave benefits to tens of thousands of people who live in the suburbs and commute to one of the 158,000 jobs in downtown Minneapolis. Thus, the presumed benefits of the ordinance apply regionally, not locally.
Even if a court were to conclude that sick leave did present a matter of local concern, the question then would turn to whether state law pre-empts, or overrides, the Minneapolis ordinance.
Right To Farm Question Stirs Fears About Oklahoma Waters
News 9, 5/31/16
In the heat of an Oklahoma summer water is king. And fears over a lack of it aren’t far behind. Those same concerns are at the heart of the controversy over Oklahoma’s state question 777 named Right to Farm.
If passed the question would amend the state constitution heavily limiting state oversight on any farming practice, which opponents say could include the use and ownership of water used in farming.
“We have serious concerns that foreign-owned giant corporations really care about Oklahoma’s water,” Mickey Thompson said.
Thompson is the executive director of the new anti-SQ777 group Oklahoma Food, Farm and Family.
Opponents of Right to Farm say it gives large farming corporations the ability to claim ownership of state water sources for use in farming or ranching without any accountability to keep it clean or safe to drink. Many of those sources would also be used by cities and towns for water supply, according to Thompson.
Lawsuit to keep ‘Right to Farm’ off state ballot dismissed
Tahlequah Daily Press, 5/30/16
Mistrial declared in Oregon pesticide dispute
Capital Press, 5/24/16
A judge has declared a mistrial in a lawsuit that claims several residents of Curry County suffered health problems from off-target pesticide spraying.
Pacific Air Research, an aerial applicator, and landowner Joseph Kaufman were accused of negligence by 15 plaintiffs who sought $4.2 million in damages for physical ailments allegedly caused by herbicides sprayed in 2013….
Advocates of the agriculture and forestry industries were concerned about the dispute because the constitutionality of Oregon’s “right to farm” law was called into question during the litigation.
Under the “right to farm” statute, farmers and foresters are protected from lawsuits accusing them of nuisance and trespass for performing generally accepted industry practices.
The defendants in the case raised the “right to farm” law as a defense and asked the judge to throw out the lawsuit.
Plaintiffs responded by requesting that the “right to farm” law be declared unconstitutional because it deprived them of a legal remedy for an injury…
Opponents of the “right to farm” law have criticized it for preventing people harmed by pesticide trespass from having their day in court.
Natural resource attorneys, on the other hand, have said the statute doesn’t protect unlawful pesticide applications.
Gun safety bill advances in City Council
The Philadelphia Inquirer, 6/2/16
A bill that would require safe storage of guns and ammunition in homes with children passed out of a committee of Philadelphia City Council on Wednesday without a word of opposition from gun-rights advocates.
But that does not mean pushback isn’t coming…
National Rifle Association spokesman John Hohenwarter said on Wednesday that the association sent no one to testify at Council’s hearing because it believes that the law would be unenforceable because of a state preemption that bars local municipalities from passing gun laws.
El Paso ID Effort Could Force Local Control Showdown
Texas Tribune, 6/1/16
El Paso is billing its effort to provide the indigent and undocumented with new municipal ID cards as a way to enhance public safety and build community. Republican Gov. Greg Abbott seems to see it another way.
“We are going to ban sanctuary city policies,” the governor tweeted last week in response to a question on the proposal, using the common term for government entities believed to intentionally disregard federal immigration laws.
Since 2014, proponents of a local ID card have argued such a document could benefit about 50,000 people living in the West Texas area, including the homeless, the poor, immigrants and the elderly, many of whom lack access to another form of government ID. It would lead to greater cooperation with law enforcement, they say, and could be used to access local services like libraries and utilities — but not to drive, get through a TSA checkpoint or vote.
Tough new tenant protections pass in city council
Sawant and former Councilmember Nick Licata introduced the “Carl Haglund” bill days before last fall’s election. Haglund became the unenviable symbol of slumlords in the city when — as landlord of a South Seattle apartment building — he suddenly announced a massive spike in rent prices, even as his apartments lingered in disarray.
Under this new proposal, landlords will be required to bring buildings up to code before they can raise rents. If they retaliate against tenants for complaining, they will be slapped with a fine…
“We are concerned that this new legislation is being moved forward without being properly vetted to ensure it does not run afoul of the State pre-emption of rent control,” said Sean Martin of RHWA (Rental Housing Association of Washington) last April when the bill was introduced.
Seattle Gun & Ammo Tax Appealed to Higher Court
The New American, 5/25/16
A lawyer for the plaintiffs who are appealing Robinson’s decision calls it a “regulatory fee masquerading as a tax” and accused Seattle’s city council of trying to sneak around state law. That state law, known as “State Preemption,” prevents local municipalities from doing what Seattle is trying to do: infringe on the state’s citizens’ rights to keep and bear arms as guaranteed by the Second Amendment. Nearly every state has such preemption in place and it will be used during the appeal.