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California's hard lessons in chemical policy reform - Jan-Feb 2011

The Networker
I. I. Editor's note: time and tributes Carolyn Raffensperger
II. California's Green Chemistry Initiative: lessons learned at the roadblock Joseph H. Guth
II. III. More thoughts from CHANGE members Bill Allayaud and Davis Baltz


  I. Editor's note: time and tributes TOP

 By Carolyn Raffensperger

If I were to do a retrospective art exhibit of the lessons I've learned in the environmental movement the unifying theme might be time. Some of the simplest and least impressive wins take decades. So many of the losses are forever. Numerous problems will linger for millennia.

I learned my first lesson about time through a legislative struggle to get one dollar into the Illinois legislature's budget for a public trail. It took 17 years. We didn't need the money. Obviously one dollar doesn't go very far. But we needed the recognition by the state so that the trail could proceed. Seventeen years. When we finally won, there were volunteers who hadn’t even been born when the first activists tried to get that single dollar into the budget.

The mountains in West Virginia that have been sacrificed for coal are gone forever. They will never come back. They lie in waste in the streams that flow through that beautiful state.

I cut my environmental teeth on radioactive waste and served on a commission charged with deciding the fate of a site that would have to isolate radioactive waste for 500 years. Our three-person commission voted unanimously to oppose the site because we did not have evidence that concrete could contain radioactive waste for that long a period of time.

I am reminded of these lessons again because of the bitter stories of innovative legislative and regulatory efforts on green chemistry and toxic chemicals. A couple of years ago California passed legislation that would drive a green chemistry agenda. Green chemistry is one expression of the precautionary principle and its mandate to find and choose the safest alternatives to harmful chemicals. Passing that legislation was a huge victory for the environmental community, but it was only the beginning of a story that took a sudden turn backward late in 2010. Joe Guth tells the whole saga as it has unfolded so far, so we can understand the lessons we must learn.

Some of those lessons are about time. Legislative and regulatory processes are grindingly slow. But we can learn so many other lessons from this one story. Lessons about crafting tight legislation so the regulations have a firm foundation, setting goals in the legislation, and the value of funders' support for coalitions rather than individual groups. I wonder about other things. How do we best use our resources when some of these struggles take so much time and the losses are happening so much faster? How can we build a strong grassroots movement so that an industry take-over of legislation or regulation becomes impossible?

Of all the people who have focused on this last question, Peter Montague is one of the most important. He dedicated his career and his remarkable writing to help build that movement. I've had the privilege of working closely with Peter since 1994 when he, along with a larger team, hired me to work for SEHN. Peter served as the president of SEHN's board for the past many years. While he will continue to serve on the board, he just handed the presidency to a longtime friend of the environment, Dr. Madeleine Scammell, whom I've known since 1995 when I served as president of the Loka Institute board and she was the associate director.

There aren't enough ways to say thank you to Peter for his contributions to this larger work. The precautionary principle would not have become an important force in the world without his perceptive questions or his exceptional writing. I would not be who I am without his friendship. Now we at SEHN have the gift of working with another marvelous human being. Madeleine is one of the most knowledgeable experts on community-based research. Like Peter, she is dedicated to building grassroots movements.

I know with absolute certainty that we would not have gotten this far without people like Peter and Madeleine. I also know that they are two among thousands of environmentalists who have done everything possible to protect the ocean, the mountains, babies' health, to obtain wilderness or nature preserve designations for precious places, and to forestall extinctions of rare species. I thank you all. But today I'd like to say a special thanks to Peter for his long service and to the activists who have struggled so hard on California's green chemistry efforts and the national safe chemical legislation. We haven’t won yet, but we will. Because of you.

So we offer this issue of the Networker as an opportunity to step back and think clearly about those struggles we've won and those we haven’t won yet.

  II. California's Green Chemistry Initiative: lessons learned at the roadblock TOP

 By Joseph H. Guth

SEHN Legal Director Joe Guth, who lives in the Bay Area, has been intensely involved in the California Green Chemistry Initiative since its beginning—from consulting on the initial 2006 UC Berkeley paper that laid out the case, through participating actively in the CHANGE coalition, to serving as an appointed member of the Green Ribbon Science Panel in the most recent implementation phase. He now divides his time between SEHN and the UC Berkeley Center for Green Chemistry, where he teaches law and policy.--Eds.

On December 23, 2010, after more than two years of development, the California Environmental Protection Agency announced that it was withdrawing the Green Chemistry Initiative (GCI) regulations it had proposed just a month earlier. California EPA would thus miss a statutory deadline for completing the regulations. It was going back to the drawing board.

We don't yet know the ultimate fate of California's landmark attempt to reform the way industrial chemicals are managed, which the state boldly launched after tiring of waiting for action from Washington. But while California EPA awaits instructions, a budget, and new department heads from the state's new Governor, Jerry Brown, this is a good time to reflect on lessons learned and think about the way forward on chemicals policy in California as well as in other states and nationally.

Green chemistry comes to California

In 2006 the University of California sent a groundbreaking report to California's legislature, "Green Chemistry in California: A Framework for Leadership in Chemicals Policy and Innovation." Cal/EPA Secretary Linda Adams launched the GCI a year later. With accompanying fanfare from Republican Governor Arnold Schwarzenegger, Secretary Adams directed Cal/EPA, according to a press release, to develop "a fundamentally new approach to environmental protection, transitioning away from managing toxic chemicals at the end of the lifecycle, to reducing or eliminating their use altogether."

Led at the time by Maureen Gorsen, the Director of the Department of Toxics Substances Control (DTSC, a division of Cal/EPA), Cal/EPA conducted during 2007 and 2008 an unprecedented program of study of chemicals policy and outreach to diverse communities within the state. Phase I, which lasted through December 2007, was the "listening phase" of the GCI and involved a blog receiving 57,000 hits, four public workshops, three symposia, and other public panels and meetings to brainstorm policy ideas. It culminated in the Phase I Options Report compiling 818 policy ideas from over 600 participants.

In Phase II, conducted from January to June 2008, the policy ideas compiled in the Phase I Options Report were analyzed through a series of seven stakeholder meetings throughout the state. Five interagency teams within the government examined "key elements" of the report. Draft "policy frameworks" were developed. A Green Chemistry Science Advisory Panel of 21 experts held six meetings and completed a report containing a set of policy recommendations. Cal/EPA completed this program of outreach and study during the last half of 2008 by accepting a commissioned report from the University of California and, at last, issuing the December 2008California Green Chemistry Initiative Final Report recommending six actions that would comprise a new Green Chemistry policy framework for California.

Perhaps most importantly, near the end of the 2008 legislative session, Cal/EPA and Governor Schwarzenegger began to work vigorously with the California legislature. Two pending bills relating to chemicals policy were quickly directed toward Cal/EPA's developing Green Chemistry Initiative. But here the process receded substantially from public view. The Schwarzenegger Administration pushed hard for provisions that seemed protective of industry interests, with essentially no public discussion and despite objections of the NGO community. Two bills emerged, seemingly as take-it-or-leave it proposals, in a rushed process without legislative hearings, and were passed by the Democratic-majority legislature over the reservations of many NGO’s and outright rejection by others.

These two bills were signed into law by Governor Schwarzenegger on September 29, 2008: Assembly Bill 1879 (Feuer) and Senate Bill 509 (Simitian). These two statutes remain the only legislation implementing the California Green Chemistry Initiative. Cal/EPA sees them as implementing two of the six elements of its Green Chemistry policy framework: accelerating the quest for safer products (AB 1879) and creating an online toxics clearinghouse (SB 509).

Turning vague legislation into regulations

This is when Cal/EPA stepped into high gear, as it had to. AB 1879 and SB 509 gave two divisions of Cal/EPA, DTSC and the Office of Environmental Health Hazard Assessment (OEHHA), just over two years to develop a set of implementing regulations, with a deadline of January 1, 2011. DTSC and OEHHA instituted an extensive new outreach program, this time directed specifically at developing the implementing regulations. Twelve more public workshops, three symposia, and two brown-bag series events followed. An on-line "wiki" was set up to generate and receive chemicals policy ideas, a "Public-Private Partnership Initiative" was created, and DTSC responded to several legislative oversight hearings. A new, 27-member advisory panel, the Green Ribbon Science Panel, was set up as mandated by AB 1879 and held at least eight public meetings and conference calls.

Most importantly, DTSC drafted and published a series of proposed regulations for public comment. The evolving regulations included two lengthy "straw proposals," a flow chart outlining draft regulations, and eventually, on June 23, 2010 a draft regulation that received 762 pages of comments from more than 90 stakeholders.

Finally, after three-and-a-half years of preparation, DTSC was ready. It launched the formal rulemaking process on September 14, 2010, by proposing regulations for public comment by November 1. Things were finally getting serious. The pace began to quicken. And that’s when the decision-making process once again began to recede from public view.

An effective coalition

Californians for a Healthy and Green Economy (CHANGE), a coalition of more than 35 NGOs organized to promote chemicals policy reform in California, had actively participated in every phase of the Green Chemistry Initiative. For more than three years, CHANGE members attended every workshop, every symposium, and every public meeting of the Green Chemistry Science Advisory Panel and the Green Ribbon Science Panel. They proposed technical and legal ideas, provided input on SB 509 and AB 1879 (to the limited extent they had an opportunity to do so), commented on every draft regulation, submitted comments and proposals to the blog and the wiki, met with DTSC and OEHHA staff, participated as invited speakers at numerous events, and responded both informally and in writing to questions asked by DTSC. CHANGE met with Cal/EPA Secretary Linda Adams, Acting DTSC Director Maziar Movassaghi (who had replaced Maureen Gorsen), and members of the Schwarzenegger Administration; attended and offered comments at the legislative oversight hearings; and kept legislators regularly apprised of the status of the regulations.

When Cal/EPA finally issued its formal proposal on September 14, 2010, CHANGE had numerous concerns with the regulations, and viewed them as falling short of the comprehensive chemicals policy reform that the coalition had been working to achieve. Many of its members voiced opposition to the proposal. And yet, CHANGE recognized that the proposed regulations were the outcome of years of a very public process and hard work. The coalition also recognized that many of the flaws in the proposed regulations were rooted in the flaws of AB 1879 and SB 509. Those problems could only be fixed if the legislature reopened those laws, a process that would have an uncertain outcome at best. The coalition ultimately decided to offer suggestions for improving the proposal and to support it as a step forward in developing a chemicals program that could be built on and improved in the future.

Industry’s final push

Industry felt differently. It objected in formal comments to many aspects of the formally proposed regulations, as it had many times before. Just as it had throughout the Green Chemistry Initiative, the chemicals industry publicly voiced general support for the idea of chemicals policy reform but objected vigorously to virtually every specific regulatory proposal that would actually reform current practices.

But something more must have happened this time. Once push came to shove, industry made its influence truly felt. CHANGE members don't know how this occurred or what levers were pulled. Was it sudden panic in the Schwarzenegger Administration over California's dire economic condition? Was it financial contributions and the emergence of the revolving door for outgoing administration officials? Was it the influence of Maureen Gorsen? The former Schwarzenegger insider and champion of the GCI as Director of DTSC had resigned her position to join a law firm in private practice and then become a principal industry spokesperson against the regulations. Was it irreconcilable turf conflicts among the various divisions within Cal/EPA that had seemed perpetually to simmer in the background?

All we know for certain is that on November 16, 2010, merely two weeks after the close of the comment period on the regulations DTSC had worked so hard to develop, DTSC suddenly released a set of proposed Revised Regulations that it hoped to quickly push through the formal rulemaking process with a shortened 15-day comment period rather than the normal 45-day period, ostensibly to enable completion by the January 1, 2011, deadline.

The proposed Revised Regulations were radically restructured. They did not reflect the preceding regulatory development process, and, as CHANGE put it, undermined that two-year stakeholder process. They seemed in some people’s view literally to have been written by industry, and the truncated period for comment and analysis, which CHANGE believed was procedurally illegal, left insufficient time for all parties to fully evaluate and discuss the new provisions. But CHANGE concluded that the new proposal would be so ineffective and burdensome to the state that the people of California would be better off without the Revised Regulations than with them. With no assurance that any better set of regulations would ever emerge, CHANGE and its NGO allies reluctantly urged that the Revised Regulations be withdrawn.

CHANGE pushes back

This time it was CHANGE's turn to exert political influence, and the coalition swung into action. It filed formal substantive comments and held a press conference. Coalition members served as sources for news reportsthat reached the front pages. CHANGE contacted legislators who had supported the Green Chemistry Initiative. It enlisted new allies who would speak out from the NGO community, public health agencies, and progressive businesses. The coalition argued to the outgoing Schwarzenegger Administration that the revised regulations would not constitute the kind of environmental legacy that Governor Schwarzenegger claimed to covet. It sought to enlist support from the Brown Administration. It filed a legal action requesting communications with DTSC that might reveal what had happened.

Many others also urged that the Revised Regulations be withdrawn: the legislative author of AB 1879, many members of the Green Ribbon Science Panel, and the Berkeley Center for Green Chemistry, including the principal authors of UC Berkeley’s 2006 and 2008 Green Chemistry reports.

And so it happened that in the waning days of the Schwarzenegger administration, Cal/EPA formally withdrew the AB 1879 implementing regulations. Implementation of this key element of the GCI had failed, at least temporarily. Now, suddenly, the administration officials who led the GCI are all gone. Governor Schwarzenegger's term in office is over. Cal/EPA Secretary Linda Adams will be replaced. Maureen Gorsen is gone. Acting DTSC Director Movassaghi and some of his staff have resigned as well, taking their institutional experience and expertise on the Green Chemistry Initiative with them.

We don't know whether Governor Jerry Brown will adopt this key initiative of his predecessor. We don't know the priorities of the new leaders of Cal/EPA, DTSC, or OEHHA. While AB 1879 and SB 509 are laws on the books, Governor Brown faces an overwhelming budget deficit that inevitably will constrain the scope of any new programs.

Lessons for the next phase

While we wait, this is a good time to reflect on lessons learned, for there are many. Though it is tempting to be discouraged, there are elements of good news for civil society in this story.

We should not underestimate the significance of AB 1879 and SB 509: the Democratic California legislature and Republican Governor Schwarzenegger were able to work together and agree to take significant steps toward reforming how chemicals are managed in our society. Those statutes remain the law of California. Their implementation is being watched elsewhere in the US and the world, and their impact will be felt far into the future. We have seen that toxic chemicals are on the public's mind: California newspapers ran front-page stories on the difficulties encountered in regulatory implementation of California's new laws.

We should also take heart from the fact that some aspects of the approach taken in AB 1879 to chemicals policy were adapted from the work of some of the most progressive NGOs working in chemicals policy today. Cal/EPA in its Final Report on the Green Chemistry Initiative cited the work of Clean Production Action and others on the use of alternatives analysis as the central driver for greener chemicals. Those ideas were incorporated into California law. This proves that ideas generated by progressive environmentalists can indeed be enacted into law in the United States, and that it is vital to continue their development.

It is also significant that the CHANGE coalition serves as an effective counterweight to the far larger financial resources of the chemicals industry. By functioning as a coalition, CHANGE was able to project its presence at many more events and develop ideas far more effectively than its component organizations and individuals could have done separately. The funding of CHANGE to operate as a coalition helped the members work together, build on common ground, develop more sophisticated understanding and arguments, and avoid the competition with each other into which NGOs are often forced.

The long-term commitment of CHANGE funders to the regulatory process and not just the legislative process has been a critical factor. Over the years, many of the most significant national environmental laws have been eviscerated through the regulatory process. Making any law actually work to improve the environment and public health requires a long-term commitment to regulatory implementation, even though such work might not be as glamorous as new legislation. As a result of this commitment by the CHANGE funders, many individuals working within the coalition have now developed substantial expertise in chemicals policy. CHANGE can boast of a wealth of people able to read a lengthy regulation, quickly spot its strengths and weaknesses, and propose fixes. CHANGE has developed credibility with Cal/EPA, the legislature, and the media. This capability cannot be developed overnight, and it is one of CHANGE's greatest assets. It is going to be needed in the years to come.

It is also worth reflecting on why the development of implementing regulations has been so difficult. One reason stems from the flaws in the laws themselves, particularly AB 1879. The California legislature did not truly specify a resolution of the conflict of interests inherent in chemicals policy between environment and public health on the one hand and vested industrial interests on the other. The laws are often ambiguous, difficult to understand, and contain provisions that protect industry interests rather than further the stated goals of Cal/EPA's Green Chemistry policy framework. Only the legislature can fix these problems, a process whose outcome could not be easily controlled.

As they are, the laws give enormous discretion to Cal/EPA and ultimately to the governor's office. The legislature provided no funding for Cal/EPA to implement the laws. This failure of the legislature to make hard choices or provide resources has left it up to Cal/EPA to resolve the difficult political conflicts. Cal/EPA thus remains exposed to the political winds of the moment and vulnerable to litigation and second-guessing by the courts once regulations are adopted. While laws that do not provide clear guidance to regulatory agencies may be easier to get through a legislature, they are subject to the difficulties in regulatory implementation that we have seen with AB 1879.

A second problem has been the approach taken by DTSC and Cal/EPA in developing the regulations. During the past three years, DTSC staff indicated repeatedly if informally that as long as all stakeholders were equally unhappy, DTSC was doing its job. They hoped the wiki would lead to a consensus among different interest groups that DTSC seemed to believe had emerged. The implication was that there is no right answer from a policy perspective, and that DTSC's task is to manage the demands and pressures from different interest groups. That approach was doomed to fail. It led DTSC, after two years of study, to provide one proposal on September 14, 2010, for comments by November 1 and then, abandoning its public consultation process, to provide a radically different proposal merely two weeks later--but then give that one up when the political response blew up in November and December. DTSC was tossed helplessly about in the sea of swirling politics because it never developed a substantive policy mission for itself.

Instead, DTSC (and any agency in this position) should develop a proposal that it believes furthers the interests of Californians in reducing the industrial use of toxic chemicals, sell it to Cal/EPA and the governor, and then fight for that proposal while being open to any improvements that would strengthen it. Consensus is not going to emerge magically through operation of some tool like the wiki. Fundamental interests are in conflict and nothing can change that. It is government's job to develop a vision that takes account of the various interests at play and prioritizes those that are most important to the public welfare, not to find a political accommodation of those interests that leaves everyone equally unhappy but is also ineffective.

This leads to one final lesson learned, repeatedly. The procedures established in California for obtaining public involvement in the design and implementation of important laws are immensely important to democratic government. And yet an administration can work around them when it wishes to. The final forms of AB 1879 and SB 509 were essentially developed behind closed doors and sprung at the last minute of a legislative session with very little real public analysis or consideration. Similarly, the final Revised Regulations of November 16, 2010, were developed mysteriously and proposed just before a deadline that could accommodate only a severely truncated public review.

In both cases, the decision-making process that really counted, the one that produced the legislation and final proposed regulations, occurred quickly, behind closed doors, and with the interest groups that mattered most to the Administration apparently in charge. Despite monumental early public involvement, it's the endgame that really counts.

  III. More thoughts from CHANGE members TOP

 By Bill Allayaud and Davis Baltz

We asked CHANGE coalition members what lessons they had learned from the Green Chemistry Initiative process. Here is how two responded.--Eds.

Bill Allayaud, California Director of Government Affairs, Environmental Working Group (from a January 25 interview with Katie Silberman)

Stick with AB 1879. The law was part of the problem: it is vague, and over time it will likely have to be revised. But we are not going to campaign to change it now because a new law would not take effect until 2012. We need to get a Green Chemistry program up and running ASAP and not delay it a couple of years by amending the law in a substantive way. We need to stick with the intent of the Green Chemistry Initiative as written up in the law and the UC Berkeley report and ask, is this regulation getting us toward that or just trying to make sure industry doesn’t threaten a lawsuit? Make a flow chart - where did we go wrong? What does the law say? The agency's job should not be to make industry happy, but instead to be faithful to the intent of the law.

Go deeper. We should use the Green Ribbon Science Panel more effectively. That body is supposed to be our objective voice. We should listen to open debates among the panelists on selected topics, then hold meetings of environmental and health advocates, industry folks, and agency staff on the same topics. It would be helpful to everyone if we figure out what's feasible. Let's see if we can get to "yes," or close to it, in in-depth, hours-long meetings. The wiki sounded good, but it was not helpful. Contributors are anonymous. It is mostly a waste of time and delays the hard decisions. The straw proposals followed by public hearings didn't help too much either. Two- or three-minute statements at a hearing are not substantive enough. We need to go deeper, sit at the same table.

Worst first. Start with the bad actor chemicals by using existing lists from other entities and don't let industry bully them off the list by saying the science isn't proven. For example, we now know that BPA is bad stuff for babies and probably adults; the evidence is now overwhelming against this chemical being in our bodies. DTSC needs to bite the bullet and put it and other chemicals like it on a list. And we should agree with industry on a list of products to be regulated first, where exposure is most common and the most vulnerable are exposed. We care more about shampoo and cleaning products than we do about a Ford auto or an HP computer.

Fund it. Funding was the 800 lb. gorilla that never was dealt with. We need to push harder on establishing a tiny fee on the consumer products that will be addressed first in the new program.

Keep working as a coalition. Our coalition worked well. Besides the more than 35 members of CHANGE, others like Sierra Club and NRDC were part of a collective voice. Even though we didn't always exactly agree, everyone was on the same page as to the major flaws in the proposed regulations.

Davis Baltz, Commonweal, adds:

Despite the imperfections of our coalition (and every coalition has some), I think CHANGE was certainly successful in establishing itself as a recognized stakeholder in California's green chemistry process. We did this by showing up for every stakeholder meeting, providing comments at every opportunity, and requesting in-person meetings with DTSC leadership. We were helped a great deal by communicating regularly with allies outside of CHANGE, such as other NGOs following this in Sacramento and sympathetic members of the Green Ribbon Science Panel.

Another key ingredient for CHANGE was multi-year foundation support which made our ongoing contributions possible.

We were able to articulate and defend a well-thought out vision of how AB 1879 should be implemented and keep an eye on the whole instead of simply providing piecemeal criticisms.

The value of our presence became apparent at the 11th hour of the Schwarzenegger Administration when terrible revisions to the draft regulations were posted, presumably at industry's behest, that would have doomed the program to insignificance or worse. CHANGE, along with others critical of this stealth move by the Schwarzenegger Administration, was able to prevent these regs from being enacted. This "success" was due in large part to our established role as a stakeholder whose views needed to be considered.

I say "success" in quotes because it was not really a victory. We did not get regulations that would meaningfully advance green chemistry or make more information public about chemicals, which would enable the market to function better. Our achievement was purely defensive. After over two years of intensive participation and input from CHANGE members, at the end of the day we are in some ways back to square one. We know industry will continue to push for weak or counterproductive regulations with the new Brown Administration. We will have to make our case again to the new powers that be and commit to maintaining our level of involvement.