"Joseph Gwinn" wrote in message
...
In article ,
"Ed Huntress" wrote:

"J. Clarke" wrote in message
in.local...
In article ,
says...

"Joseph Gwinn" wrote in message
...
In article ,
"Ed Huntress" wrote:

"Joseph Gwinn" wrote in message
...
In article ,
"Ed Huntress" wrote:


[snip]


Now, about EPA overreach and the dishwasher detergent
regulations:
They
aren't from EPA at all. It's 16 individual states that enacted
the
near-ban
in 2009 and 2010.

The question is what prompted them.

And if the EPA had declared dishwasher detergent phosphate use as
de
minimus, the states would not have argued. Actually, they could
not
have argued, by federal preemption. So, we are back in
Washington.

Uh, I'm not sure where preemption enters this. EPA did not dictate
to
the
states what they had to do. They supplied research and analysis.

There was a recent Supreme Court case on just this. If the Feds
have
entered an area, the states have to back off.

For instance http://www.faegre.com/13445.

There may be others, but I wasn't paying attention at the time.

Joe Gwinn

Yeah, I'm aware of the law regarding federal preemption, but I have
seen
no
evidence that it applies in this case. If the EPA wrote a regulation
on
it
and if a state tried to oppose it, there would be a preemption case.

Again, I have not come across any such issue in the little reading
I've
done
about it.

I believe that he's saying that IF the EPA had declared phosphates in
dishwasher detergent to be ACCEPTABLE then the states could not have
banned it.

If that's what he's saying, that's not the case. On the other hand, if
the
EPA banned it, and a state tried to legalize it, preemption would have
kicked in.

That's the case with lots of laws. Unless there's a 14th Amendment issue
involved (regarding a "fundamental right"), or some specific federal
authorization, states can make more restrictive laws than the related
federal ones. Those issues have been involved, with the resolution still
to
be determined, over immigration. Likewise, even after a constitutional
Amendment legalizing alcohol, states can regulate it, and can authorize
municipalities to outlaw its sale.

I didn't follow this dishwasher-detergent/phosphate law to the end of the
line, but it looks like the EPA wasn't involved in the bans. It appears
that
it's all state law. I could be mistaken, but I didn't see any federal
administrative law involved in it.

I don't recall that the EPA did anything explicit either, which is the
point. The EPA could have prevented extension to dishwasher detergents
with a word, but chose not to. (One assumes that there were lots of
private discussions.)

In other words, if the EPA had said that a dishwashing detergent
phosphate ban was unnecessary, it would have undermined efforts in the
states to legislate or by regulation impose such a ban, and no such bans
would have happened.

Joe Gwinn

I have no way to know if that's the case, but, assuming it is, I'd still
want to see some up-to-date reports that analyze these challenged rivers and
estuaries before making a judgment. I'm not convinced that the cost of
eliminating phosphates is greater than the cost of not doing so.

--
Ed Huntress