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Sustainability, CleanTech and Climate Change Alert

2011 – A Year of Sustainability Regulatory Actions?

Monday, January 03, 2011

A recent benchmark survey of corporate sustainability programs, the first of its kind, identified nine major components: energy conservation, renewable energy purchases, LEED® building construction, greenhouse gas emissions, production and transportation, supply-chain accountability, product stewardship, solid-waste conservation, and water conservation.1 However, there is no uniform set of binding federal rules, regulations, or generally accepted guidelines in the United States that specifies what practices or related requirements are "sustainable," a term that has been loosely applied to an array of practices and activities. Even the benchmark survey identified, not surprisingly, a range of industry-specific practices.

This lack of binding governmental sustainability requirements (and therefore the existing flexibility in applying the concept of sustainability) may be about to end. For example, the Environmental Protection Agency (EPA) is seeking comments on its "Role in Promoting Sustainability in Products."2 Sustainability, in EPA’s view, means primary prevention, not reaction. In the words of Administrator Lisa Jackson, it is the "difference between treating versus preventing diseases."

Also, EPA has turned to the National Academies of Science (NAS) to develop (by late 2011) an overall framework on sustainability for EPA regulatory actions. Even before EPA commissioned the NAS report, however, its Design for the Environment (DfE) Program proposed a draft "Alternatives Assessment Criteria for Hazard Evaluation" for use by companies, states, and other groups to identify human health and environmental "hazards" posed by chemicals of concern in products.3 The DfE initiative is intended to inform product sustainability decisions on whether to substitute a chemical constituent to establish safer product alternatives. Generally, EPA’s DfE Alternatives Assessment Partnerships program "brings together environmental organizations, industry leaders, academia, and others to evaluate the environmental and health impacts of potential alternatives to problematic chemicals" to assist the private sector’s attempts to "choose safer chemicals, as well as avoid unintended consequences of switching to a poorly understood substitute" (EPA’s DfE Web page contain a growing number of protocols, see http://www.epa.gov/dfe/alternative_assessments.html). EPA is accepting comments on the Alternative Assessment Criteria for Hazard Evaluation through January 31, 2011.

Consensus industry standards have long coexisted with regulations (and in some cases are incorporated in regulations over time), and sustainability seems to be no exception. For example, the U.S. Green Building Council (USGBC) is conducting a pilot project to grant LEED® credits for sustainability (including energy savings, water efficiency, and improved indoor environmental quality). Also, ASTM International released a compilation of Standards for Sustainability in Buildings (4th edition), including the Standard Guide for General Principles of Sustainability Relative to Buildings, which describes methods of decision-making in "applied sustainability" (real-world sustainability involving cost-benefit trade-offs). The ASTM standards have been incorporated into: (a) the Federal Green Construction Guide for Specifiers, (b) the current public draft of the International Green Construction Code, and (c) the Green Globes® sustainability rating system.

The advent of EPA sustainability regulation raises a number of important issues, about which companies may want to express their views. For example, will EPA or other federal agencies continue to rely upon consensus standards or adopt new, more restrictive regulations? EPA has specifically requested the NAS to assess whether the new sustainability framework requires major changes in EPA’s existing risk assessment/management paradigm. Also, companies and EPA need to determine whether such a change in framework requires statutory amendment. Further, should other regulatory regimes that intersect this area, such as the Federal Trade Commission’s "green" or eco-labeling requirements, be incorporated into or superseded by EPA’s initiative (as suggested by EPA’s development of its own labeling initiatives and EPA’s comments on the FTC’s proposed green labeling requirements)?

These questions suggest how much may be in play in 2011, and the need for companies to review these initiatives and move ahead to comment to EPA and the NAS now, in order to be able to influence the direction of future sustainability policy and regulation.

Endnotes

1 See D. M. Cowan, et al., "A cross-sectional analysis of reported corporate environmental sustainability practices," Regulatory Toxicology and Pharmacology, Volume 58, Issue 3, December 2010, Pages 524-538. Abstract and article available via search, using article title, at http://www.sciencedirect.com/science?_ob=MiamiSearchURL&_method=requestForm&_temp=search.tmpl&_acct=C000050221&_
version=1&_urlVersion=1&_userid=10&md5=e8f85aaf77b99e87049137f36c4cf96a
.

2 75 Fed. Reg. 56,528 (September 16, 2010), available at http://www.gpo.gov/fdsys/pkg/FR-2010-09-16/pdf/2010-23123.pdf.

3 Available at http://www.epa.gov/dfe/alternatives_assessment_criteria_hazard_eval_nov2010_final_draft2.pdf.

William J. Walsh

Written by

William J. Walsh
Phone: 202.220.1424
Fax: 202.220.1665
walshw@pepperlaw.com


The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.

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