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September 16, 2010

EPA Soliciting Comments on Its Role in Advancing Sustainable Products

Bergeson & Campbell, P.C.

Today the U.S. Environmental Protection Agency (EPA) published a Federal Register notice seeking individual stakeholder input regarding EPA’s role in the “green” or sustainable products movement. 75 Fed. Reg. 56528. EPA will consider the information gathered from the notice and other sources as it works to define its role and develop a strategy that identifies how EPA “can make a meaningful contribution to the development, manufacture, designation, and use of sustainable products.” Comments are due October 19, 2010.

EPA states that, more specifically, it would appreciate comments responding to the following questions:

  1. What do you see as the major policy and research challenges, opportunities, and trends impacting the development, manufacture, designation, and use of sustainable products?
  2. What do you see as EPA’s overall role in addressing these challenges and opportunities?
  3. In particular, how do you see EPA’s role in:
    • Assembling information and databases;
    • Identifying sustainability “hotspots” and setting product sustainability priorities;
    • Evaluating the multiple impacts of products across their entire life cycle;
    • Defining criteria for more sustainable products;
    • Generating eco-labels and/or standards;
    • Establishing the scientific foundation for these eco-labels and/or standards;
    • Verifying that products meet standards;
    • Stimulating the market;
    • Developing end-of-life management systems (reuse, recycling, etc.); and
    • Measuring results, evaluating programs.

According to the notice, EPA’s authority for taking this action is Section 13103(b) of the Pollution Prevention Act of 1990, which requires the EPA Administrator “to facilitate the adoption of source reduction techniques by businesses and to identify opportunities to use Federal procurement to encourage source reduction.”


Given the currently widespread marketing emphasis on “green products,” EPA encouragement if not endorsement will be seen as a potentially valuable marketing tool. At the same time, EPA (or any federal agency) involvement might rapidly devolve into less desirable EPA interference in marketplace competition. As EPA defines what is “sustainable,” the temptation for regulating or otherwise impeding those things “not sustainable” will be increased.

Past attempts to define “environmentally preferable products” have typically had difficulty in weighing or balancing different criteria (e.g., is lower energy consumption more important than disposal impacts?). Regarding government procurement preferences, competing priorities also come into play (e.g., environmental criteria vs. small business set-asides). Even something as “simple” as government purchasing of cleaning products ran into such difficulties.

Public comments on the current notice will help inform EPA about the various trade-offs and possible unintended consequences of current and future sustainability initiatives.