California is often regarded as a regulatory policy bellwether for the rest of the nation, so there was a great deal of attention paid when in 2008 the state became the first to adopt a program of “green chemistry.” It was hailed by many as a victory for the environment and consumers and was said to augur well for chemicals regulation elsewhere.
So why do environmental activists now appear intent on sabotaging the Green Chemistry Initiative? Why do the very same groups that supported the initiative — demanded it, really — now insist on revisions that seem sure to scuttle the whole project? Did they change their minds about the need for safer consumer products? Are they such blind ideologues that they don’t understand that three-quarters of a loaf is better than none? Or is there something more sinister going on?
The Green Chemistry Initiative seeks to identify “chemicals of concern” in products made or sold in California and, where possible, establish a way to manufacture them with safer materials. Environmental groups lauded the 2008 legislation that launched the initiative and pledged to work with state regulators on rules that would make the concept a reality. The business community — keenly aware of the inefficiency and expense of making chemicals regulatory policy one bill, one chemical at a time — got on board.
The relative harmony seemed too good to be true. And apparently it was.
The ink was scarcely dry on draft regulations from the Department of Toxic Substances Control (DTSC) before they came under assault by environmental activists. The rules were said to be too lax and too friendly to business and not tough enough. On its face, this is hardly a surprise, because for some in the environmental lobby, no regulations are ever tough enough and economic considerations should never be a factor. But what set this attack apart was the extremism and poor reality testing of the eco-lobby’s demands.
First, the activists insisted that the regulations would have to be amended to eliminate the setting of priorities by the DTSC, even though the department had explained that it needed to apply its finite resources where they could do consumers the most good. Nothing doing, the activists remonstrated. The DTSC’s mission should be to first identify and understand every single one of the more than 80,000 chemicals in commercial products today; anything less would be a betrayal of the environmental ideals that drove the initiative. Never mind that no agency could hope to climb that scientific and bureaucratic Everest, and that burdening the DTSC with such an impossible objective would guarantee failure.
Next, activists demanded the DTSC remove from the regulations any hint of a minimum threshold. In other words, the presence of any chemical of potential concern — even a minuscule amount far too small to pose any risk — would trigger the full regulatory response. Again, this effectively imposes on DTSC a workload that isn’t remotely feasible.
The activists even demanded that there could be no exception for products that offered no conceivable risk of exposure to consumers. The DTSC must not be allowed, they argued, to make a distinction between a product with a toxic chemical that could find its way into or onto a consumer and one in which the chemical posed no threat to anyone. This leads inevitably to preposterous outcomes: a drinking glass subject to regulatory strictures because the sand from which it is made contained chemicals dangerous to inhale, or the lead in a locomotive’s electrical components treated no differently from lead in a children’s toy.
Finally, the activists resisted any meaningful protections for confidential business information within the regulations. Unlike in virtually all other interactions with regulatory bodies, they argued that companies should have no safeguard against access to their trade secrets by competitors, plaintiffs or others. Everything — formulas, production methods, manufacturing techniques, supplier relationships — would be fair game for whatever competitor or litigator wanted to see it.
In a regulatory environment that overburdens the regulators and in which there is no place for cost-benefit balancing or protection of trade secrets, virtually every product would be fair game for someone claiming it’s out of compliance and liable for damages. Thus, many of the activists’ demands would create the basis for pointless, endless lawsuits; and that, in turn, would be terribly disruptive to both innovation and commerce.
That brings us back to the question of why activists seem to be trying to sabotage the Green Chemistry Initiative. Zealotry? Ignorance? Promised kickbacks from the trial lawyers? Or might they intend themselves to “greenmail” industry — that is, demand payments to keep quiet about supposed violations.
Californians learned a long time ago that behind nearly every “cause” is someone with a briefcase and a legal strategy. Plaintiffs’ attorneys have made billions from much smaller pastures than the one activists seem to be trying to cultivate for them with their demands on the DTSC.
An orgy of litigation would benefit no one — except, of course, the plaintiffs bar — and would be an opportunity wasted. Applied in a sensible way, California’s chemicals regulation could have made the rest of the country green with envy.
Henry I. Miller, a physician and molecular biologist, is a fellow at Stanford University’s Hoover Institution. He was formerly an official at the National Institutes of Health and Food & Drug Administration.
