Chapter 3 - The Assault on Environmental Enforcement
Using the hammer of federal preemption
When federal law and state law address the same subject conflict, the Supremacy Clause of the U.S. Constitution makes it clear that federal law pre-empts the conflicting state law. However, deciding whether state and federal law are in conflict is rarely is straightforward matter. Throughout much of the last half of the twentieth century, the federal government led the way forward on environmental and public-health causes or set the floor for compliance and allowed more progressive states, like California, to take the lead. In these areas, federal law was not found to conflict with state law, but rather, supported the more protective state laws. Only when the state law was found to be weaker did the federal standards preempt the state statute.
However, in the short time that it took allies of polluting industries to gain power in Washington, their approach to federalism[29] shifted dramatically. With allies controlling Congress and the White House and with favorable decisions virtually assured in the Supreme Court, opponents of environmental regulation have joined other former states’ rights advocates in asserting federal preemption of progressive laws. In the name of national regulatory uniformity and promoting efficiency in commerce and trade, these new proponents of federal supremacy have targeted progressive environmental, public health, consumer, and labor protections in states and localities nationwide. This new reality must be fully understood by environmental and public health advocates if they hope to challenge the campaign against these crucial protections.
 |
Dow v. Bates —
Bush Administration and Pesticide Producers
|
 |
The Supreme Court is currently considering a case being argued by the Bush Administration that seeks to preempt Texas state remedies for victims suffering damages from pesticide producers. The case, Dow v. Bates,[30] pits 29 Texas peanut farmers whose entire crop was wiped out by the weed killer, Strongarm (diclosulum), against Dow Agrosciences, the largest manufacturer of pesticides in the world.
Joining Dow in the case is the Bush Administration’s Department of Justice. The administration’s position is a reversal from their long established position of favoring states’ rights against federal preemption. The administration is arguing that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempt Texas state law remedies that protect ordinary citizens from damage from these “economic poisons”.[31] Why did the Bush Justice Department change the U.S. government’s longstanding position on this question and go against the administration’s own, widely proclaimed support for states’ rights? Simply put, if they prevail, big agrochemical companies like Dow will be immune from citizen action for damages caused by their products under the Texas law. |
|
Industry opponents have targeted the regulation of toxic chemicals for federal preemption with particular zeal. Several factors have helped these opponents in their campaign to weaken toxics laws, including: the complex and highly technical nature of chemical regulation, the tremendous industry pressure on regulators and legislators to weaken or abandon enforcement, and the limited public awareness of existing statutory and regulatory protections as well as the significant gaps in and weaknesses of the current regime.
One of the industry lobbyists’ main targets of for federal preemption has been Proposition 65. Since its passage in 1986, regulation opponents, led by the Grocery Manufacturers of America and the food lobby, have made no fewer than sixteen attempts to preempt California’s toxics-warning law. Keeping in mind the broad-based support for toxics regulation in the state, opponents have used a bait-and-switch approach to achieve their ends. Under the guise of national uniformity in labeling, industry lobbyists introduced legislation, which would ostensibly establish consistent nationwide labeling standards, but in reality, their bills would eliminate more health protective and more consumer friendly laws with Prop. 65 being the number one target.
Following the election in November 2004, industry lobbyists may now believe that any remaining obstacles to passage of their long-sought preemption legislation have been removed. In January 2005, they introduced and then rapidly got passed, a complete overhaul of national rules governing class-action lawsuits. This had been a major priority of industry lobbyists for years but had failed to pass the Senate because of consumer, civil rights, and environmental opposition. With this victory under their collective belt, it is virtually certain that industry lobbyists will soon push Congress to take on California’s pre-eminent environmental, consumer-protection law.
|
