In a new report, “Sustainability and the U.S. EPA" (the Report), a committee of experts selected by the National Academies of Science (NAS) have recommended that the Environmental Protection Agency (EPA)’s existing regulatory risk management framework be supplanted by one based on sustainability (i.e., consideration of social, environmental, and economic factors), including in regulatory decisions on the use of alternative chemicals for products and processes in “green chemistry applications.”1 The committee believes that current approaches are not capable of avoiding adverse developments such as “population growth, gaps between the rich and the poor, depletion of finite natural resources, biodiversity loss, and climate change.” The Report uncritically recites claims that risk assessment may be considered “code for license to pollute” and that “challenges” to risk assessments are a “means to delay the possibility of costly actions.”

Specifically, the Report recommends:

  • risk assessment methods should “account for the full range of human health and ecosystem risks, including cumulative risks, intergenerational considerations, and the distribution of risks among population groups.”
  • cost benefit analysis should “account for the full range of ecosystem benefits,” “take intergenerational considerations into account sufficiently,” and “take into account the distribution of benefits and costs among population groups.”
  • community, jobs, and quality of life,” “community improvements,” and the “benefits for the surrounding community” should be considered in decision-making (emphasis added). However, the Report fails to describe how to balance these social factors with the costs and risk, particularly if risk reduction is small and the cost is not trivial
  • the social, environmental, and economic benefits of its decisions should be optimized and/or maximized – to achieve as “little harm” as “possible” and not accepting “significant adverse effect” unless the alternative results in an even more significant adverse effect (emphasis added).

These recommendations represent a significant change in the regulatory paradigm. NAS did not address whether EPA possesses the statutory authority to incorporate broader sustainability goals into the agency’s existing regulatory programs, although one observer has commented that “[m]any aspects of sustainability are beyond the EPA’s mandate.”2 Expanding the use of sustainability from guiding voluntary decisions on purchasing and as a company management program to serving as the basis for imposing binding requirements on companies (e.g., to ban or restrict the use of a substance in a product, or to drive the selection of a much more expensive remediation alternative) in whole or part due to social factors, is a dramatic shift. Whether society is willing to grant EPA such broad authority in making what can be unquantifiable, subjective judgments weighing wide ranging social issues is at best unclear.3

Companies interested in these initiatives can provide comments to a new NAS committee, which is now developing “specific decision-support tools” to “assess the consequences and tradeoffs of sustainability-oriented programs.”4 Also, interested parties can continue to engage EPA directly on these generic issues, even though the time period set by EPA to obtain input on how EPA might incorporate sustainability into its various programs has formally closed (this comment period was simply a designated opportunity to exchange ideas among stakeholders, not a rulemaking with firm deadlines, and it appears EPA remains open to further input). Finally, as EPA proposes interpretations, guidance, or initiates a formal rulemaking to integrate sustainability into specific regulatory programs, businesses should look for opportunities to provide comments to EPA (or Congress) on these proposals.