Green Chemistry Rulemaking Renewed

Posted on July 21, 2011 by Caleb Holmes

From Gene Livingston of GT Sacramento:

The new Director of California's Department of Toxic Substance Control, Debbie Raphael, announced that mid-October is the new target date for new draft regulations to implement California's Green Chemistry Law. The law called for regulations to be in place by January 1, 2011. However, universal opposition last year to the previously proposed regulations rendered that date impossible. Raphael, demonstrating political acumen, has the support of the legislative authors of the law to take the time needed “to get it right.”

Raphael promised to meet with stakeholders between now and mid-October to inform the rulemaking process, and after the draft regulations are released to seek comments from the Green Ribbon Science Panel at its November 14-15, 2011 meeting on the scientific aspects of the draft regulations. Then, the Director and her staff will produce regulations to launch the formal rulemaking proceeding. 

 Raphael laid out the principles that will guide the development of the regulations. They have to be “practical, meaningful, and legally defensible.” Those principles are easily embraced by political leaders, business interests, and environmentalists. There is something for everyone. The challenge will be getting consensus on what is practical but still meaningful with numerous aspects of the regulations, starting, for example, with selecting chemicals of concern, prioritizing the products containing chemicals of concern, describing the life cycle factors to assess existing chemicals and products and their possible alternatives, and imposing regulatory mandates, ranging from labels to bans of products.

 The resolution of these aspects and others in the regulations will determine whether the green chemistry program sinks of its own weight, stifles innovation, drives up the cost of products, eliminates products in the California market, or becomes a model for other states, stimulates innovation, expands sustainable product development, results in fewer toxic products, and less toxic waste.

 The green chemistry regulations can affect every manufacturer selling products in California as well as their suppliers, distributors, and retailers. They need to be aware of the rulemaking activities occurring in California during the next six months, a time period that will be critical as DTSC seeks to write regulations that are indeed practical, meaningful, and legally defensible.
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Non-Partisan Legislative Analyst Recommends Ceasing All Work on the Cap-And-Trade Program Until More Alternatives are Analyzed By Legislature

Posted on May 25, 2011 by Caleb Holmes

From Thomas Sheehy of GT Sacramento:

The Global Warming Solutions Act of 2006 (AB 32) established the goal of reducing greenhouse gas emissions (GHGs) statewide to 1990 levels by the year 2020 and charged the California Air Resources Board (CARB) with monitoring and regulating the state's sources of GHGs. In December of 2010, a lawsuit was filed against CARB alleging that the board failed to follow statutory requirements of AB 32 and the California Environmental Quality Act (CEQA) in the development of CARB’s proposed cap-and-trade regulation. In its statement of decision, the lower court found that, because CARB failed to adequately describe and analyze cap-and-trade alternatives, it failed to proceed in the manner prescribed by law. In its final ruling, the court enjoined CARB from engaging in any cap-and-trade-related project activity until CARB has come into complete compliance with CEQA. CARB has stated that it is currently conducting further analysis, as required by the courts, but that it intends to file an appeal. CARB intends to proceed with the development of its cap-and-trade program during the appeal process.

The focus of the AB 32 program has begun to shift from regulatory development to implementation and enforcement. As such, the Legislature included provisions in the 2010 budget requiring a zero-based budget be submitted by April 1, 2011, for all AB 32 expenditures across state government in order to reevaluate funding requirements of the AB 32 program implementation. On May 4, 2011, more than one month after it was due, the Administration submitted the AB 32 zero-based budget to the Legislature. Upon review, the non-partisan Legislative Analyst (LAO) found that the report generally lacked adequate workload analysis to justify the level of staffing and contract resources requested for the various AB 32-related activities across state government. This makes it difficult, if not impossible, for the Legislature to properly evaluate the AB 32 budget.

The LAO now recommends that the Legislature direct CARB to cease all work on the cap-and-trade program until it has completed the required analysis of potential alternatives and has presented the results. It further recommends that the Legislature reduce funding included in the budget for cap-and-trade development and implementation by $8 million. Once the analysis has been completed and evaluated by the Legislature, the Administration can then submit a revised budget proposal for cap-and-trade development and implementation that reflects the findings from its alternative analysis and that is consistent with any policy direction that the Legislature has provided.
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Federal Meat Inspection Act Preempts Proposition 65.

Posted on April 16, 2010 by Reed Rubinstein

From Lisa Halko, GT Sacramento.

On April 14, 2010, the California Supreme Court denied a petition to review the Fourth Appellate District’s decision in American Meat Institute v Leeman holding the Federal Meat Inspection Act (FMIA) preempts California’s Proposition 65.  This decision will provide much needed regulatory certainty, and possibly curtail Proposition 65 abuses.

The AMI case arose because a well-known Prop 65 plaintiff, Whitney Leeman, had given notice of her intent to sue meat packagers for failure to warn consumers that meat supposedly contains harmful amounts of carcinogens and/or reproductive toxins.   Leeman claimed that packaged meat contains dioxins and PCB’s, which are listed Proposition 65 substances, and should bear labels stating: “WARNING: This product contains chemicals known to the State of California to cause cancer” or “WARNING: This product contains chemicals known to the State of California to cause birth defects or other reproductive harm.”  

AMI sued for declaratory relief, arguing that Proposition 65 is inapplicable because “labeling … requirements in addition to or different than” the FMIA’s are preempted. FMIA requires inspection of all meat to determine whether it is adulterated or misbranded. Meat warranting a passing grade is labeled “inspected and passed.” 

The trial court and the court of appeals agreed with AMI. Notably, California’s Attorney General argued in an amicus brief that while warnings stuck to the packaged meat might be preempted, signs on store shelves would not be.  Nevertheless, the Fourth District held that in-store Proposition 65 warnings are “labeling” under the FMIA and criticized other cases holding that in-store Proposition 65 warnings are not preempted by laws including FIFRA and FDCA.  AMI's preemption analysis is solid, and will, if applied by other courts, substantially help address the regulatory confusion caused by the unduly broad application of Proposition 65.
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