Rachel's Democracy & Health News, July 20, 2006


[Rachel's introduction: Many people have given up trying to influence Congress because they feel powerless against Big Money. Instead, they are working to pass state laws. Can this bring lasting success?]

By Peter Montague

Many people have given up trying to influence Congress because they feel powerless against Big Money. Instead, they are working to pass state laws. Can this succeed?

Traditionally, states have been "laboratories of democracy," carrying out unique legislative experiments. Oregon allows physicians to help people die if they are terminally ill. New Jersey requires chemical companies to report the amounts of certain chemicals stored on-site (to help fire-fighters know what they're up against). California bans the gasoline additive, MTBE, because it is contaminating California water supplies. And so on.

A new trend: federal preemption

In the past five years, the federal government has mounted a major campaign to cancel state and local laws. This is surprising to many people because in early 2001 President Bush said he believed the role of the federal government is "not to impose its will on states and local communities." To many, it is inconceivable that this president would lie because he entered office on a pledge of public morality.

Yet the record is clear: Since 2001 Congress has passed 29 laws containing 39 provisions that impose the federal government's will on the states. It's called "federal preemption." The National Conference of State Legislatures calls it "a disturbing and growing trend" and has started publishing a Preemption Monitor to help states keep track of the flood of new federal efforts to usurp power from state and local governments.

In the last 5 years Congress has...

** Prevented California from requiring car manufacturers to sell a certain number of electric vehicles in California;

** Prevented states from imposing a sales tax on internet sales;

** Overridden a California law that restricted the ability of banks to sell data about their customers;

** Taken away states' rights to choose locations for liquefied natural gas (LNG) plants, which are subject to catastrophic explosions;

** Canceled the authority of states to determine where certain power lines can be placed;

** Limited the right of states and cities to file liability claims against gun manufacturers;

** Overturned California's ban on the gasoline additive MTBE even though it's contaminating the state's water supplies;

** Overturned state laws requiring canned tuna to be labeled with its mercury content;

** And on and on...

In general, the beneficiaries of federal preemption have been large corporations. Indeed, many see corporations setting the federal preemption agenda. San Diego's conservative newspaper, the Union- Tribune, says what we're seeing is an "industry-mapped campaign to impose Washington's will." California's Democratic attorney general, Bill Lockyer says Congress simply "regurgitates what it hears from business." Moderate Republicans are upset by the current trend as well. California's pro-business Republican governor, Arnold Schwarzenegger, said recently, "Incredibly, under Republican control of Congress, states' rights are beginning to erode again.... They are telling us how to run state education, state health care, state elections and even where we can locate a liquefied natural gas plant."

The latest attempt by corporations and Congress to usurp state power is HR 4591, a bill in the House of Representatives that would prevent states from imposing their own security restrictions on chemical plants. HR 4591 is particularly clever because its stated purpose is to ratify a treaty that the U.S. signed years ago but has never ratified, the Stockholm Convention on Persistent Organic Pollutants, also known as the POPs Treaty. The POPs treaty phases out a "dirty dozen" nasty chemicals including DDT, PCBs and the pesticide chlordane. It has already been signed by 127 other nations. HR 4591 would ratify the treaty but would require it to be enforced in a way that would gut its intended purpose. (You can tell Congress what you think about HR4591 here.)

Another important bill, HR 5695, would prevent any state from passing stricter security controls on chemical plants than the feds set. HR 5695 would treat all states as if they had the same needs. But Wyoming and Nevada have no chemical plants, whereas New Jersey is jammed with dangerous chemicals factories within breathing distance of millions of people. New Jersey might want to control chemical factories a bit more judiciously than Nevada or Wyoming. Under HR 5695, New Jersey would be out of luck.

So, can citizens pass state-level laws and maintain them in the face of federal preemption? Yes, definitely, but it will very likely take more than just state-level campaigns. If history is any guide, we'll also have to organize ourselves sufficiently at the grass-roots level nationwide with the aim of overcoming corporate influence ($) and power. Daunting? Yes. Impossible? Not on your life. One thing's sure: it can't happen if it isn't firmly established as a goal.