Abstract
This chapter asks what is needed to craft effective legal frameworks that take the notion of sustainable production seriously. Getting to an answer requires consideration of three questions. First, what do we mean by “sustainable production” in terms of a definition and fundamental principles? Here the chapter adopts a definition and examines three central principles: life cycle thinking, integration of environmental, social and economic concerns, and a preventive orientation. Second, what types of mandatory regulation can be used to advance sustainable production in accord with the fundamental principles? In response the chapter provides an overview of forms of sustainability-based regulation, and maps them onto five existing regulatory programs that to various degrees reflect sustainable production concepts. Third, which of those forms of regulation should be used to advance sustainable production? Recognizing the breadth of this normative question, the chapter does not attempt to identify the optimal regulatory approach. Instead it offers a set of factors that may influence regulatory design in this context.
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Notes
- 1.
One commentator estimated that “three hundred definitions of ‘sustainability’ and ‘sustainable development’ exist broadly within the domain of environmental management and the associated disciplines” (Johnston, Everard, Santillo, & Robèrt, 2007).
- 2.
The Commission began meeting in 1984. Of course, researchers and stakeholders had raised concerns about unbridled economic development for years before the Commission coined the term “sustainable development” (O’Brien, 1999).
- 3.
Admittedly, the definition does not incorporate the concept of sustainable consumption, which is often paired with sustainable production.
- 4.
I use the term “sustainability analysis” with some trepidation given the disparate meanings ascribed to it. See Hacking and Guthrie (2008). That said, we have to call it something.
- 5.
It is worth noting that some commentators, including me, also identify information disclosure as a form of reflexive law (Karkkainen, 2000; Malloy, 2004).
- 6.
Large quantity toxics user are firms within specified industry sectors that use listed toxic substances above certain volumes and that employ ten or more full-time workers, unless the firms fall with a limited set of priority user segments (Massachusetts, 2006).
- 7.
In certain circumstances, the Massachusetts Department of Environmental Protection may establish performance standards applicable to industry segments limiting the generation of byproducts per unit of production (Massachusetts, 2006). The agency has yet to assert that authority some 24 years after TURA was enacted.
- 8.
A substance becomes subject to the authorisation process upon being listed as a SVHC in Annex XIV to REACH. The listing process is quite involved, with new candidate substances identified at least every 2 years (European Parliament and Council, 2006).
- 9.
Article 14.6 requires manufacturers registering chemicals produced in volumes exceeding 10 tons per year to identify and apply the appropriate measures to adequately control the risks associated with the substance, and to recommend them in the safety data sheets provided to downstream users). Article 37.5 requires identification and application of adequate controls by downstream users). Article 60.2 sets the authorisation standard for SVHCs not falling within the prevention-based regime.
- 10.
With respect to environmental risks, Annex I of the regulation requires that concentrations of the substance must be kept below the level at which “adverse effects in the environmental sphere of concern are not expected to occur” (European Parliament and Council, 2006).
- 11.
There is significant opportunity for third party participation in the authorisation process; a firm’s alternatives analysis and substitution plan are publically available, and comments are accepted by the agency during the 8 week long consultation process.
- 12.
The regulation states that “[r]isk management measures should be applied to ensure, when substances are manufactured, placed on the market and used, that exposure to these substances including discharges, emissions and losses, throughout the whole life-cycle is below the threshold level beyond which adverse effects may occur” (European Parliament and Council, 2006). The Authorisation guidance noted that
“[i]deally the assessment should address all possible risks throughout the entire lifecycle of the substances including all relevant compartments and populations, even those not originally associated with the identified risk. The reason for this is that, while an alternative may reduce the specific identified risks of the Annex XIV substance, it may pose other risks at different points in its lifecycle or may shift the risks to other compartments/populations when it replaces the substance of concern” (ECHA, 2011).
- 13.
Unlike TURA, it also deploys market influences by requiring public disclosure of the alternatives analysis report and other relevant documentation (DTSC, 2013).
- 14.
Even where no safer alternative exists, DTSC may ban or phase-out unless the manufacturer demonstrates that the benefits and utility of the product significantly outweigh its overall adverse impacts, and that exposure controls can adequately protect human health and the environment (DTSC, 2013).
- 15.
“Life cycle” is defined as “the sum of all activities in the course of a consumer product’s entire life span, including raw materials extraction, resource inputs and other resource consumption, intermediate materials processes, manufacture, packaging, transportation, distribution, use, operation and maintenance, waste generation and management, reuse and recycling, and end-of-life disposal” (DTSC, 2013).
- 16.
Other directives include the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (RoHS), the Directive on Waste Electrical and Electronic Equipment (WEEE), the Energy Labeling Directive, and the EU Ecolabel Regulation. RoHS bans the use of lead, chromium, mercury, cadmium, poly-brominated biphenyls, and polybrominated diphenyl ethers in certain applications. WEEE establishes collection, recycling and recovering rates for covered materials (Remmen, Andersen, & Dalhammar, 2010). The Energy Labelling Directive imposes mandatory energy efficiency and consumption labelling requirements on more than ten appliance product groups (European Parliament and Council, 2010a). The EU Ecolabel Regulation is a voluntary certification program “intended to promote products with a reduced environmental impact during their entire life cycle and to provide consumers with accurate, non-deceptive, science-based information on the environmental impact of products” (European Parliament and Council, 2010b).
- 17.
The Commission has issued 25 implementing measures under the original and amended Eco-design Directive, all of which have focused upon energy consumption and energy efficiency (See European Commission, 2013).
- 18.
In some circumstances, industry may negotiate self-regulatory measures for any product group where such measures can deliver the policy objectives faster or in a less costly manner than mandatory requirements (European Parliament and Council, 2009). As of January 5, 2014, two self-regulatory measures have been approved covering imaging equipment (such as printers) and complex set top boxes, respectively (European Commission, 2013).
- 19.
The factors focus upon “technical” design issues such as capacity, resources and the like. The discussion leaves for another day questions regarding the normative basis for various forms of intervention (Malloy, 2014). It also leaves the role of politics to the side. For a discussion of the political history of some of the programs discussed in this chapter, see Ellenbecker and Geiser (2011) (TURA) and Iles (2011) (California Safer Consumer Products regulations).
- 20.
Of course experience in the accounting sector has shown that third parties are not consistently able to maintain their independence and may be “captured” by their clients (Coffee, 2004). Nonetheless, the likelihood of such capture is substantially increased where the persons performing the analysis are employees of the firm.
- 21.
Ideally as part of the regulatory design process, policymakers would chart the reflexive capacities of different types of firms within regulated community by sector, size or other metric. Such a complicated undertaking is beyond the scope of this chapter. For an example of such an attempt, see Lynch-Wood and Williamson (2011).
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Malloy, T.F. (2014). Design for Regulation: Integrating Sustainable Production into Mainstream Regulation. In: Cahoy, D., Colburn, J. (eds) Law and the Transition to Business Sustainability. Perspectives on Sustainable Growth. Springer, Cham. https://doi.org/10.1007/978-3-319-04723-2_1
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