California Green Chemistry Law: Is Arnold OverREACHING?

California legislators have approved a new green chemistry bill, which Governor Schwarzenegger proposed last year and is expected to sign into law this year.  The bill would force manufacturers to move to processes that minimize environmental impact. We haven't heard about it was interesting to learn more from environmental lawyer Peter Hsaio, with the Los Angeles-based law firm of Morrison and Foerster, and colleagues who wrote an article (below) that will appear in the November/December issue of Trends.

The model for this regulation is the REACH legislation in Europe, which has challenged chemical and fine chemical manufacturers since it took effect last June. When it was first proposed, national trade groups predicted the demise of all small manufacturers and entire sectors. 

The outcry in California has been subdued so consumers' support for green initiatives continues to grow, it's unlikely to be too loud.

But this is more evidence of the fact that California is leading the U.S. in environmental initiatives----perhaps some of you old timers remember the chemical industry's outcry over Proposition 65 labelling requirements? The law was lambasted by the industry at the time, and, yes, it did lead to a number of absurd lawsuits (people suing fast food chains, for example, because their restaurants emitted PAH's ) but it did perform a public service. And industries are still doing business in California.

REACH is a very broad initiative, and may scare some people but anything that spurs industry to try more innovative measures is a good thing. Plus (sorry if I sound like Pollyanna), companies that have developed "greener" processes invariably find that they have a positive bottom-line impact.

Establishing EPA did not put chemical companies out of business. 

So it is refreshing to see California (and a Republican) taking initiative during an extended period when environmental matters appear to be on the lowest possible public policy priority level in (and slipping fast...Not to get political here, but pity the poor polar bears.)  


California REACHes for its Green Chemistry Initiative

By Peter Hsiao, Susan Linden, and Robert Reinhard

California’s high profile efforts to control greenhouse gases may have overshadowed its equally groundbreaking environmental program called the Green Chemistry Initiative (Initiative). Introduced by Gov. Schwarzenegger in April 2007, the Initiative is a coordinated strategy to reduce or replace the upstream introduction and use of toxic substances, and to provide greater information to the public about their risks.

In designing its Initiative, the state looked to the European Union’s new REACH (Registration, Evaluation, Authorisation & restriction of Chemicals) regulations for lessons in how to replace the current examination of chemical risk on a piecemeal basis with a systemic process to evaluate chemicals in a life cycle analysis before they are introduced into products. As part of this process, both REACH and the Initiative purport to adopt the precautionary principle that one should study, disclose, and manage chemical risks before they are approved for use, rather than after the harm occurs.

Critics of the current system assert policy and data gaps exist in the current chemical regulatory system, including a significant lack of information on chemical uses and safety, and insufficient private or public investment in green chemistry research, development, education, and technical assistance. The Initiative’s advocates argue that its approach will lead to safer products and less hazardous waste or other harmful impacts to the environment.

The California effort has been led by its Department of Toxic Substances Control (DTSC), which has conducted a series of public workshops, expert panel meetings, and electronic solicitations to collect ideas for how to implement the Initiative. After preparing a report of its recommendations, the agency worked with the California legislature to introduce two joined bills, Assembly Bill (AB) 1879 and Senate Bill (SB) 509.

AB 1879 will empower DTSC, with the help of a "Green Ribbon" panel, to adopt regulations by Jan. 1, 2011 to identify and regulate chemicals of concern in consumer products. The process of considering how and whether to regulate a chemical will include consideration of thirteen life-cycle criteria, including the product’s manufacturing process, use characteristics, and waste and end-of-cycle disposal.

Based upon that analysis, AB 1879 will allow DTSC to conclude that "no action" is required, or to adopt a broad variety of regulations that may require: (1) disclosure of additional information needed to assess a chemical of concern and its potential alternatives, (2) labeling or other types of consumer product information, (3) restrictions on the use of the chemical of concern in consumer products, (4) prohibition of the use of the chemical of concern in consumer products, (5) controlled access to or limited exposure to the chemical of concern in consumer products, (6) requiring the manufacturer to manage products at the end of their useful life, including recycling or responsible disposal of consumer products, (7) seeking funding for green chemistry challenge grants where no feasible, safer alternative exists, (8) and, in a broadly worded authorization, seek any other outcome to accomplish the requirements of the law.

SB 509 further reflects the influence of REACH on California’s Initiative. The bill aims to make more chemical risk information available to the public by directing DTSC to create a Web-accessible Toxics Information Clearinghouse of chemicals used in products. The state’s Office of Health Hazard Assessment, the same agency that creates the Proposition 65 lists, will be directed to evaluate and, by Jan. 1, 2011, specify the hazard characteristics and environmental and toxicological end-points for chemicals and any other relevant data that are to be included in the clearinghouse. The agencies will collect and utilize the data collections from both REACH and the Environmental Protection Agency, along with other states, and share its data with those government and regulatory agencies.

The Initiative impact could be the most far reaching set of chemical regulations ever adopted by any state, and surpass the scope of the federal Toxic Substances Control Act. AB 1879 requires that the regulations it authorizes be coordinated with federal law to mitigate potential conflicts and preemption issues. The Initiative further provides an alternative to the absolute statutory bans on certain chemicals enacted by other states and by California, in favor of a more reasoned and scientific-based process of life cycle analysis and scientific study, coupled with greater public disclosure and agency regulation. The Initiative thereby attempts to balance the costs and benefits provided by the use of chemicals with the impetus to encourage reformulation and replacement of more toxic substances with safer alternatives. Future agency rulemaking will be important to clarify how this balance may be achieved.

This article will appear in Trends, November/December 2008, Volume 40, Number 2.