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June 20, 2017


California is a good example of a state that passes laws and adopts regulations to carry out such laws for the benefit of its citizens, but in many areas and to varying degrees, claims and suits brought under such laws and regulations are subject to federal preemption, i.e., such laws and regulations at the state level are simply reversed and become null and void, both retrospectively and for future application. Likewise, many of the federal statutes and regulations provide for exemption or otherwise “preempt” application of some of their own laws and regulations. The State of California, for instance, has long had motor vehicle emissions laws and regulations more stringent than those federally required due to the state’s problems with smog, but that doesn’t mean that the state has such powers; rather they have more stringent powers to address such local issues because the Congress specifically allowed states to adopt more but not less stringent laws and regulations than federal emissions standards.

The problem is that what Congress gives Congress can take away, not only in emission standards but in myriad other areas, areas such as standards for the marketing of toxic substances in a given state. For instance, California has long had strict requirements for the marketing of toxic substances. Thomas O. McGarity, professor of law at the University of Texas, writes in the Spring 2017 edition of The American Prospect that “The chemical industry has long pressed Congress to preempt strict state toxic substances control laws that make it harder for them to market their products in states like California.”

The industry finally succeeded last year when Congress passed the Lautenberg Chemical Safety Act, which enhanced the EPA’s ability to regulate toxic chemicals and, incidentally, preempted future state regulations. That state will have to live with the EPA’s future regulations and with a regulation-hater such as Trump and a climate-denier at the head of the EPA it is plain that Congress has decided to tell the people of California what their public policy is to be. With the federal reach of the Act, such federal regulations and re-dos of existing regulations will, of course, also have application to any of the other forty nine states who have the temerity to pass laws and adopt regulations that the chemical industry dislikes. Home Rule? Ha! That’s a good one! Profit trumps public health (via the political closed door).

Californians and the citizens of the other forty nine states will be left to the tender mercies of the Trump’s administration’s regulation of future toxic chemical risks. Those maimed and disfigured by toxic substances who bring suit against such chemical companies will find their claims for damages dismissed by the courts for failure to meet such greatly strengthened requirements imposed by the preempting regulations sure to follow passage of the Act. Big Business wins; the disfigured consumer can pay for his or her own plastic surgery.

The Congress has the power to replace state common law with federal law in suits brought by individuals in state court with toxic chemicals, as we have seen, but it can also design liability in railroad injuries and deaths, damaging side effects of vaccines and dozens if not hundreds of other types of liability cases and, as McGarity observes, there is no requirement that federal regulations provide an alternative mechanism for relief, leaving the victims to no remedy at all against companies whose products or activities comply with the federal requirements, even if those requirements are feeble.

He then cites the infamous 1992 case of Cipollone v. Liggett Group, Inc., as an example, and it is a good one. It involves timing and application of regulations and I will discuss it in Part II of this essay. Stay tuned.     GERALD     E


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