Preemption Language in Federal Environmental Statutes

Preemption Language in Federal Environmental Statutes

Order Code RS20280
Updated August 23, 1999
CRS Report for Congress
Received through the CRS Web
Preemption Language
in Federal Environmental Statutes
(name redacted)
Legislative Attorney
American Law Division
Summary
This report compiles the provisions in federal environmental statutes that explicitly
state whether Congress intended to preempt state law. The provisions are arranged in
four categories, from least preemption to greatest: (1) rights/jurisdiction of state
generally unaffected; (2) if a federal standard exists, the state standard must be the same
or more stringent; (3) state regulation different from the federal scheme is preempted, but
a waiver may be available; and (4) state regulation different from the federal scheme is
preempted, and no waiver is available.
This report compiles the provisions in federal environmental statutes that explicitly
state whether Congress intended to preempt state law. The provisions are arranged in four
categories, from least preemption to greatest. Note that several statutes appear under
more than one category.
Rights/jurisdiction of state generally unaffected1
Clean Air Act
“Nothing in this part [dealing with mobile-source pollution] shall preclude ... to any
State ... the right otherwise to control ... the use, operation, or movement of ... motor
vehicles.” CAA § 209(d); 42 U.S.C. § 7543(d).

1 The no-preemption provisions in this section are not necessarily part of statutes that generally take
a no-preemption approach. Several of these provisions seem merely intended to make clear that
a statute’s explicit preemption of state law as to certain matters does not impliedly preempt other
areas loosely related to such matters. Thus, the first-listed provision states unequivocally that the
Clean Air Act’s explicit preemption of most state regulation of automobile emissions should not
be construed to mean that the Act preempts state regulation of automobile use.
Congressional Research Service ˜ The Library of Congress

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Clean Water Act
“[N]othing in this Act shall ... impair[] ... any right or jurisdiction of the States with
respect to the waters ... of such States.” CWA § 510; 33 U.S.C. § 1370.
Comprehensive Environmental Response, Compensation and Liability Act
“Nothing in this Act shall be construed ... as preempting any State from imposing any
additional liability or requirements with respect to the release of hazardous substances
within such State.” CERCLA § 114(a); 42 U.S.C. § 9614(a).
Emergency Planning and Community Right to Know Act
“Nothing in this Act shall ... preempt any State ... law” or otherwise affect any state
authority to adopt or enforce any state law (with exception for state laws requiring
submission of material safety data sheets). EPCRA § 321; 42 U.S.C. § 11041.
Noise Control Act
Nothing in NCA section 5 (new products) shall affect a state’s rights to regulate
levels of environmental noise (with exceptions noted on page 5). NCA § 5(e)(2); 42
U.S.C. § 4905(e)(2).
Ocean Dumping Act
“[N]othing in this title [federal regulation of ocean dumping] shall preclude or deny
the right of any State to adopt or enforce any requirements respecting dumping of
materials into ocean waters within the jurisdiction of the State.” ODA § 106(d); 33 U.S.C.
§ 1416(d).
Oil Pollution Act
Liability/requirements as to oil discharge/removal, and under State law generally.
“Nothing in this Act or the Act of March 3, 1851 shall — (1) affect ... the authority of any
State ... from imposing any additional liability or requirements with respect to ... the
discharge of oil ... within such State; or ... any removal activities in connection with such
a discharge; or (2) affect ... the obligations or liability of any person under ... State law,
including common law.” OPA § 1018; 33 U.S.C. § 2718.
Funds to pay for oil pollution costs. “Nothing in this Act ... shall ... affect ... the
authority of any State — (1) to establish, or to continue in effect, a fund any purpose of
which is to pay for costs or damages arising out of ... oil pollution ... ; or (2) to require any
person to contribute to such a fund.” Id.
Additional liability/requirements; fines and penalties. “Nothing in this Act [or] the
Act of March 3, 1851 ... shall ... affect ... the authority of ... any State ... — (1) to impose
additional liability or additional requirements; or (2) to impose ... any fine or penalty
(whether criminal or civil in nature) for any violation of law; relating to the discharge ...
of oil.” Id.
Resource Conservation and Recovery Act
“Nothing in this title [governing underground storage tanks] shall preclude or deny
any right of any State ... to impose any additional liability with respect to the release of
regulated substances ....” RCRA § 9008; 42 U.S.C. § 6991g.
Safe Drinking Water Act
“Nothing in this [Act] shall diminish any authority of a State ... to adopt or enforce
any law ... respecting drinking water regulations or public water systems, but no such law

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shall relieve any person of any requirement otherwise applicable under this [Act].” SDWA
§ 1414(e); 42 U.S.C. § 300g-3(e)
If no federal standard, state has free hand;
if federal standard exists, state standard permitted
if the same or more stringent
Clean Air Act
Except as to certain regulation of moving sources of air pollution, “nothing in this Act
shall preclude or deny the right of any State ... to adopt or enforce (1) any standard or
limitation respecting emissions of air pollutants or (2) any requirement respecting control
or abatement of air pollution; except that if an emission standard or limitation is in effect
[under specified provisions of the Act] such State ... may not adopt or enforce any
emission standard or limitation which is less stringent than [under those provisions].”
CAA § 116; 42 U.S.C. § 7416.
Clean Water Act
Discharge standards, and requirements respecting water pollution control.
“[N]othing in this Act shall (1) preclude or deny the right of any State ... to adopt or
enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any
requirement respecting control or abatement of pollution; except that if an emission
limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or
standard of performance is in effect under this act, such State ... may not adopt or enforce
any [such requirement] which is less stringent than [the federal requirement]. CWA §
510; 33 U.S.C. § 1370.
Marine sanitation devices on houseboats. “A State may adopt and enforce a statute
... with respect to the design, manufacture, or installation or use of any marine sanitation
device on a houseboat, if such statute ... is more stringent than the standards ...
promulgated under this section.” CWA § 312(f)(1)(B); 33 U.S.C. § 1322(f)(1)(B).
Endangered Species Act
Any state law on commerce in endangered and threatened species is void to the
extent it permits what is prohibited by the ESA, or prohibits what is authorized under the
ESA. The ESA shall not otherwise void any state law intended to conserve wildlife or
fish, or permit or prohibit the sale of wildlife or fish. Any state law respecting the taking
of an endangered or threatened species may be more restrictive than the ESA, but not less.
ESA § 6(f); 16 U.S.C. § 1535(f).
Federal Insecticide, Fungicide and Rodenticide Act
“A State may regulate the sale or use of any federally registered pesticide or device
... , but only if ... the regulation does not permit any sale or use prohibited by this Act.”
FIFRA § 24(a); 7 U.S.C. § 136v(a).2
2 Several narrow provisions of FIFRA’s preemption section, those in subsection (c), are not
included here. FIFRA § 24(c); 7 U.S.C. § 136v(c).

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Ports and Waterways Safety Act
“Nothing contained in this section, with respect to structures [on, in, or adjacent to
waters], prohibits a State ... from prescribing higher safety equipment requirements or
safety standards ....” PWSA § 6(b); 33 U.S.C. § 1225(b).
Resource Conservation and Recovery Act
Hazardous waste regulation. “Upon the effective date of regulations under this title
[governing hazardous waste regulation] no State ... may impose any requirement less
stringent than those authorized under this title respecting the same matter as governed by
such regulations, except that if application of a regulation ... is postponed or enjoined by
... a court, no State ... shall be prohibited from acting ... until such time as such regulation
takes effect. Nothing in this act ... shall be construed to prohibit any State ... from
imposing any requirements ... which are more stringent than such regulations.” RCRA §
3009; 42 U.S.C. § 6929.
Underground storage tanks. “Nothing in this title shall preclude or deny any right
of any State ... to adopt or enforce any regulation ... respecting underground storage tanks
that is more stringent than ... under this title ....” RCRA § 9008; 42 U.S.C. § 6991g.

Surface Mining Control and Reclamation Act
No state law shall be “superseded” except insofar as it is “inconsistent” with SMCRA.
Not to be construed as inconsistent are state laws that provide for (1) land use and
environmental controls and regulations of surface coal mining and reclamation operations
stricter than does SMCRA, or (2) the control of surface mining and reclamation operations
for which no provision is contained in SMCRA. SMCRA § 505; 30 U.S.C. § 1255.

State law is preempted
whether less or more stringent than the federal standard,
but waiver may be available
Clean Air Act
Motor vehicle emission standards and requirements. “No State ... shall adopt or
attempt to enforce any standard relating to the control of emissions from new motor
vehicles .... No state shall require certification, inspection, or any other approval relating
to the control of emissions from any new motor vehicle ... as condition precedent to the
initial retail sale ... of such motor vehicle ....” CAA § 209(a); 42 U.S.C. § 7543(a).
Whenever EPA certification regulations are in effect as to motor vehicle parts or engines,
no state shall adopt or enforce “any requirement of certification, inspection, or approval
which relates to motor vehicle emissions and is applicable to the same aspect of such part.”
CAA § 209(c); 42 U.S.C. § 7543(c).
EPA shall waive application of section 209 to states that adopted emission standards
before March 30, 1966 (i.e., California), if the state determines that its standards are at
least as protective as federal standards. CAA § 209(b); 42 U.S.C. § 7543(b).
A state with an approved nonattainment plan may adopt and enforce for any model
year standards relating to control of emissions from new motor vehicles, and take other
actions referred to in section 209(a), if its standards are identical to the California
standards for which a waiver has been granted for that model year. CAA § 177; 42
U.S.C. § 7507.

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Nonroad vehicle emission standards or other requirements. For nonroad vehicles and
engines other than those referred to in CAA section 209(e)(1) (page 6), EPA shall
authorize California to adopt standards and other requirements relating to emissions
control, if California finds they will be at least as protective as federal standards. Any
other state having an approved nonattainment plan may adopt standards identical to
California’s. CAA § 209(e)(2); 42 U.S.C. § 7543(e)(2).
Fuels and fuel additives. “[N]o State ... may prescribe or attempt to enforce, for
purposes of motor vehicle emission control, any control ... respecting any characteristic
or component of a fuel or fuel additive” if EPA finds that no such control is necessary, or
has prescribed such a control (unless the state control is identical). However, any state for
which section 209(a) has been waived (see page 4) may so prescribe.
“A State may prescribe and enforce, for purposes of motor vehicle emission control,
a control ... respecting the use of a fuel or fuel additive” if the state’s implementation plan
so provides. EPA may approve such a provision in a state implementation plan only under
specified conditions. CAA § 211(c)(4); 42 U.S.C. § 7545(c)(4).
Clean Water Act
“[A]fter the effective date of ... regulations promulgated under this section, no State
... shall adopt or enforce any statute ... with respect to the design, manufacture, installation
or use of any marine sanitation device on any vessel subject to the provisions of this
section.” (See page 3 for CWA treatment of houseboats.)
“[I]f any State determines that [water quality] requires greater environmental
protection, such State may completely prohibit the discharge from all vessels of any
sewage ... [once EPA] determines that adequate facilities for the ... removal and treatment
of sewage ... are reasonably available ....”
CWA §§ 312(f)(1)(A), (f)(3); 33 U.S.C. §§
1322(f)(1)(A), (f)(3).
Hazardous Materials Transportation Act
The general rule is that, unless authorized by another law of the United States, a state
law is preempted if (1) complying with both it and the HMTA is impossible, or (2) it is
an obstacle to carrying out the HMTA. In addition, state laws dealing with five specified
topics are preempted unless “substantively the same” as the HMTA and authorized by
another law of the United States. Also, a state may establish a highway routing
designation over which hazardous material may or may not be transported only if it
complies with the Secretary of Transportation’s regulations.
The Secretary may waive preemption if the state requirement offers “at least as much
protection” as the HMTA and is “not an unreasonable burden on commerce.” 49 U.S.C.
§ 5125.
Noise Control Act
Railroad noise emissions. A State may regulate levels of environmental noise or the
use, operation or movement of any product if EPA determines that such regulation is
necessitated by special local conditions and is not in conflict with regulations under this
section. NCA § 17(c)(2); 42 U.S.C. § 4916(c)(2).
Motor carrier noise emissions. A State may regulate levels of environmental noise
or the use, operation or movement of any product if EPA determines that such regulation
is necessitated by special local conditions and is not in conflict with regulations under this
section. NCA § 18(c)(2); 42 U.S.C. § 4917(c)(2).

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Toxic Substances Control Act
“[N]othing in this Act shall affect the authority of any State ... to establish or continue
in effect regulation of any chemical substance ....” However, “if the [EPA] requires by a
rule ... the testing of a chemical substance ..., no State ... may ... establish or continue in
effect a requirement for the testing of such substance ... for purposes similar to those for
which testing is required under such rule.” Similarly, preemption is triggered when there
is an EPA substance rule designed to protect health or the environment, though in this
instance with exceptions (as when the state/local rule is identical to the EPA rule).
Upon application of a State, EPA may exempt a requirement designed to protect
health or the environment if compliance with the requirement (1) would not cause the
manufacturing or use of the substance to violate requirements under TSCA, and (2) it
provides a “significantly higher degree of protection” than the requirement under TSCA.
and does not “unduly burden interstate commerce.” TSCA § 18; 15 U.S.C. § 2617.

State law is preempted
whether less or more stringent than the federal standard —
no waiver available
Clean Air Act
Nonroad vehicle emission standards or other requirements. No State may adopt or
attempt to enforce any standard or other requirement relating to the control of emissions
from two specified categories of new nonroad vehicles or engines. CAA § 209(e)(1); 42
U.S.C. 7543(e)(1).
Aircraft emissions. “No State ... may adopt or attempt to enforce any standard
respecting emissions of any air pollutant from any aircraft or engine thereof unless such
standard is identical to a standard applicable to such aircraft under this part.” CAA § 233;
42 U.S.C. § 7573.
Federal Insecticide, Fungicide and Rodenticide Act
“[A] State shall not impose ... any requirements for labelling or packaging in addition
to or different from those required under this Act.” FIFRA § 24(b); 7 U.S.C. § 136v(b).
Lead-Based Paint Poisoning Prevention Act
“It is hereby expressly declared that it is the intent of the Congress to supersede any
and all laws of the States ... insofar as they ... provide for a requirement, prohibition, or
standard relating to the lead content in paints ... which differs from ... this Act ....” LPPPA
§ 504; 42 U.S.C. § 4846.
Toxic Substances Control Act
“[I]f [EPA] requires ... the testing of a chemical substance ... , no State ... may ...
establish or continue in effect a requirement for the testing of such substance ... for
purposes similar to those for which testing is required [by EPA].” TSCA § 18(a)(2)(A);
15 U.S.C. § 2617(a)(2)(A).

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