Attorneys General Advise Against Bill That Would Limit States’ Ability
to Protect Against Dangerous Toxic Chemicals

BOSTON - Attorneys General from across the country today sent a letter to the U.S. House Committee on Energy and Commerce opposing a bill that could severely limit states’ ability to protect against extremely toxic chemicals.

The bill, sponsored by Congressman Paul Gillmor, R-Ohio, would implement the Stockholm Convention on Persistent Organic Pollutants, an important international agreement known as the POPs Treaty. The treaty prohibits or restricts the use of 12 toxic chemicals and allows for future restrictions on other dangerous substances. The bill, the state Attorneys General argue, includes broad preemption language that could undermine states’ own efforts to protect their citizens from the dangers posed by persistent organic pollutants.

“The POPs Treaty is an important worldwide step forward in protecting all citizens from the risks associated with some of our most dangerous chemicals,” said Massachusetts AG Tom Reilly, who wrote the letter on behalf of the 11 state AGs. “We should not threaten this effort by eliminating the states’ ability to protect the public from these toxic chemicals.”

The POPS treaty, signed in 2001, prohibits or restricts the production, use or release of twelve chemicals, including DDT, PCBs, and dioxins, that are extremely toxic, persist in the environment, and become concentrated in human and animal tissue as they go up the food chain. More than 50 nations have accepted the treaty, but the United States has not yet ratified it.

In today’s letter, the Attorneys General point out that the preemption language in the Gillmor Bill seriously undermines state authority to regulate substances listed under the POPs Treaty, even if an exemption to the treaty allows continued use of a substance. The Attorneys General voiced specific concerns about potentially toxic substances that states have already begun to regulate in the absence of federal regulation, such as brominated flame retardants (known as PBDEs) that some states have already banned, and that many other states are considering banning.

The Attorneys General also criticized the mechanisms in the Gillmor Bill for the Environmental Protection Agency (EPA) to review any new pollutant added to the international treaty before the pollutant can be regulated in the United States. The AGs expressed concern that the bill provides no mechanism to challenge an EPA decision not to regulate a chemical that the international community has added to POPs Treaty.

“Pollution does not have boundaries and it doesn’t follow a jurisdictional map, so we must work with our global neighbors to develop strong international environmental laws,” California AG Bill Lockyer said. “But those goals can and must be achieved without undermining the advancements states have made to safeguard public health from the dangers of pesticides and other toxic chemicals.”

"While welcoming global efforts, states must be empowered as enforcers and fighters against dangerous chemicals," Connecticut AG Richard Blumenthal said. "The science is unmistakable that pollution knows no boundaries, making global regulation critical, but worldwide measures should not undercut strong and decisive state action. States must be empowered to enact stronger regulation when necessary to protect our environment and public health and safety."

"Our country did the right thing by signing the POPs treaty. It should not now stand in the way of Illinois doing the right thing to protect its citizens from these dangerous toxic pollutants,” Illinois AG Lisa Madigan said. “No good can come of overturning our state's PBDE ban."

"Since 1972, when the phrase was coined for a U.N. environmental conference, leaders have been wisely urged to 'think globally, act locally' in protecting the environment," New Jersey AG Zulima V. Farber said. "The POPs Treaty is an excellent example of thinking globally to protect public health from the grave dangers posed by chemicals such as DDT, PCBs and dioxins. Unfortunately, this proposed federal legislation could impair our ability to act locally as states to protect our citizens from these toxic chemicals."

"This treaty is an important step forward in protecting our citizens from some of the most dangerous chemicals on earth,” New Mexico AG Patricia Madrid said. ”The legislation implementing the treaty, however, goes beyond treaty requirements and common sense. It seeks to remove virtually all authority of individual states to set more stringent standards to protect its citizens from these very toxic substances. It is fine for Congress to require minimum environmental protections but it is not acceptable for Congress to tell the states we cannot do more to protect the health of our citizens."

"It is distressing that Congress is considering blocking the states' ability to protect their own citizens from toxic chemicals, “ New York AG Eliot Spitzer said. “These pollutants are known to damage our health and the environment. States should be encouraged to take action and not be prevented from doing so by the federal government."

"Protecting our environment requires global thinking and local action. The POPs Treaty represents sound global policy, “Oregon Attorney General Hardy Myers said. “It is imperative that Congress respect the individual responsibilities of the states to develop and enforce sound local policies, including restrictions on dangerous toxic chemicals."

Attorneys General from 11 states signed on today’s letter: Massachusetts Attorney General Tom Reilly, California Attorney General Bill Lockyer, Connecticut Attorney General Richard Blumenthal, Delaware Attorney General Carl Danberg, Georgia Attorney General Thurbert Baker, Illinois Attorney General Lisa Madigan, Minnesota Attorney General Mike Hatch, New Jersey Attorney General Zulima Farber, New Mexico Attorney General Patricia Madrid New York Attorney General Eliot Spitzer, and Oregon Attorney General Hardy Myers.

The Gillmor bill is slated for a hearing on Thursday, March 2. A representative from California AG Bill Lockyer’s office is expected to testify.

The text of the letter follows:

The Honorable Joe Barton
Chair, House Committee on Energy & Commerce
2109 Rayburn House Office Building
Washington, DC 20515

The Honorable John D. Dingell
Ranking Member, House Committee on Energy & Commerce
2328 Rayburn House Office Building
Washington, DC 20515

xxxxxRe: HR 4591 - POPs Treaty Implementation Legislation

Dear Chairman Barton and Congressman Dingell:

xxxxxWe submit this letter on behalf of the undersigned Attorneys General. The United States joined the Stockholm Convention on Persistent Organic Pollutants, commonly known as the “POPs Treaty,” in 2001. The treaty represents an important step toward protecting our nation’s citizens and our global neighbors from the risks posed by certain especially toxic substances that accumulate in the global environment.

xxxxxUnfortunately, HR 4591, a bill to implement the POPs Treaty and other related international agreements, recently introduced by Congressman Paul Gillmor, Chairman of the House Subcommittee on Environment and Hazardous Materials, includes unduly broad preemption language that could severely limit states’ abilities to protect their citizens from these toxic chemicals.

xxxxxHR 4591 includes the following language designed to preempt state authority to regulate substances that become subject to the Treaty:

[N]o State or political subdivision may establish or continue in effect any requirement that is applicable to a POPs chemical substance or mixture or LRTAP POPs chemical substance or mixture . . . for which a listing under . . . the POPs Convention or . . . the LRTAP POPs Protocol has entered into force for the United States (except as permitted in section 116 of the Clean Air Act).

xxxxxAlthough currently applicable federal law in this area does include some preemption of state authority, there is nothing equivalent to the sweeping impact of the proposed bill. Indeed, under the bill’s language, state authority to regulate substances listed under the POPs Treaty could be preempted even if an exemption to the POPs Treaty allows continued use of a substance.

xxxxx We are especially concerned about such a possibility as we consider potentially toxic substances that states have already begun to regulate in the absence of federal regulation. A good example involves brominated flame retardants known as PBDEs that some states have already banned, and that many other states are considering banning. We urge you and other members of the Energy and Commerce Committee to ensure that this counterproductive preemption language does not become law.

xxxxxThe Gillmor bill also requires unacceptable EPA review procedures before any new POP would be regulated in the United States. Although the states recognize the value of EPA’s additional analysis, the procedures set forth in the bill would duplicate the international review process and potentially delay important federal action. Under that process, the Persistent Organic Pollutant Review Committee, a group of experts in risk analysis chosen by the parties to the Treaty, including the United States, must conclude that a chemical needs to be regulated to protect human health and the environment before the substance is listed, a conclusion that is accorded very little weight in the review procedures under the bill.

xxxxxAs Georgetown University Law Professor Lisa Heinzerling highlighted in her testimony before the Committee on Rep. Gillmor’s “discussion draft” of the bill, circulated on June 17, 2004, and in relevant respects identical to HR 4591, the bill does not require the United States to do anything in response to an international recommendation to list a new POP, or even impose a deadline for EPA to decide whether or not it will act. The bill also lacks any enforcement mechanism whatsoever to allow for challenges to EPA’s decisions with respect to newly identified POPs that may later become subject to the treaty. This potential for sanctioned nonresponse to an international decision to list a new toxic substance as a POP is troubling.

xxxxxIn addition, HR 4591 includes an approach to cost-benefit balancing that Professor Heinzerling aptly describes as “systematically biased against environmental protection,” particularly when it comes to protecting against pollutants like POPs. See Testimony of Georgetown Law Professor Lisa Heinzerling to the Subcommittee on Environment and Hazardous Materials, www.progressiveregulation.org/articles/Heinzerling_071504.pdf.

xxxxxWe believe that rather than erecting potentially insurmountable barriers against protecting people and the environment from the risks posed by POPs, as HR 4591 appears to do, the implementing legislation should ensure both that states have the ability to protect themselves, and that EPA be required to act expeditiously when new substances are listed as POPs.

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