Should REACH be implemented in the US? – A Global Environmental Law Student’s Guide to REACH: IL Facts

REACH – the Basics

Source: abv-environment.eu
REACH, or the Registration, Evaluation, Authorization and Restriction of Chemicals is a result of EU Law Directive No. 1907/2006. This directive’s aim was to create a new standard for evaluating chemical substances that circulate within the European Union. The directive requires all companies that are either importing chemical substances into the European Union area or producing/manufacturing chemical substances within the European Union area to register these substances with the European Chemicals Agency (ECHA). The ECHA is a new body, which was established for this very purpose. REACH shifts the burden of proof onto the companies to prove that they are environmentally sound enough. 
Article 1(1) of REACH states that: “The purpose of the Regulation is to ensure a high level of protection of human health and the environment, including the promotion of alternative methods of assessment of hazards of substances, as well as the free circulation of substances on the internal market while enhancing competitiveness and innovation.” 
About 143,000 chemical substances which circulate in the EU were pre-registered in 2008 illustrating the vast scope of this new regulatory instrument. 
REACH additionally attempts to further dent potential environmental impact by identifying chemical substances of very high concern (SVHC) because of their potential to negatively impact humans, their health, and their environment. 
REACH already affects manufacturing companies that have a supply chain through Europe, import or source from Europe, manufacture in Europe, sell product in Europe or have plans to eventually sell products in Europe. 

Why is this controversial?

REACH is generally controversial as there are many concerns as to whether the costs of implementing the Regulation to private actors and companies can outweigh the benefits to the public. There are further questions raised as to whether or not it is possible to integrate economic and environmental concerns. Many people have argued that by increasing the costs via registration further developments, research and progress will be prohibited. 
There are however many notable counter-arguments to these concerns. After 5 years REACH is seemingly workable, with little impact on competitiveness. Some might even argue that it has pushed companies to further research and develop more cost effective and environmentally sound technologies. There are also challenges ahead as REACH is still only in its initial phase, being phased in gradually. It will be important to see where a balance can be struck in order to protect the economy as well as the environment. 

REACH, Regulation and the United States

Source: ineos.com
The US is currently regulated by the Toxic Substances Control Act (TSCA) which came into force in 1976. Interpretation and implementation of this act has been notably “fleeting”, and the act is largely criticized internationally for being too weak and not covering enough to adequately protect the public in long after it was created. Numerous NGOs such as the Environmental Defense Fund (EDF) have extensively commented that the act is seriously flawed and needs fundamental reform – a total overhaul being redesigned to suit its purpose. EDF specifically say that the “TSCA is badly broken and fails to ensure chemical safety in the U.S.”, claiming specifically that it has failed to deliver information, forbids the government from sharing vital information, imposes a nearly impossible burden on the government to prove that chemicals are dangerous and perpetuates the chemical industry’s failure to innovate and develop cost-effective and safe materials to use in production and products. 
There would be notable advantages to the US adopting a similar model to REACH. As REACH has been copied or implemented in all 27 EU member states, Lichtenstein, Iceland, Norway and copied partially in China, Korea, Japan, Taiwan, being the dominant model for environmental chemical regulation using the REACH model in the US would further environmental legal harmonization. This would allow for the US to conveniently use a framework, which is already established. It would also be beneficial as it has already been extensively tried and tested, illustrating its benefits and costs. The US could additionally alter the framework slightly, phase the regulation in more slowly, to assure private parties. States California, Maine and Massachusetts have already expressed an interest in joining the framework. 
There are also notable questions that arise from considering REACH as an option for the US. For example how would this effect the workload of the EPA (Environmental Protection Agency)? Should there be a different leeway given to the states due to the current economic climate? Is the first application threshold too high? Are there unforeseen economic consequences to REACH? REACH is furthermore increasingly unpopular in the US and there has been a massive lobbying push against it. 
These are complicated questions, which need to be carefully considered before the framework can effectively be transposed. 

Opinions

It is difficult to form a strong opinion on such a wide reaching and encompassing politically charged topic, it is my belief however that the TSCA is not adequately addressing the need for toxic and non-toxic substance regulation in the US today. Ambitious as it might seem, adopting REACH seems to be a natural next step for the US, as it has gained so much support and acclaim abroad. It is also a tested solution to an existing problem and thus a valuable asset to the US legal framework. Slight modifications to the implementation are however something to be recommended. It is vital that a proper balance is struck between consumer interest and private producer economy sustainability. 

Sources used and recommended:

Lecture Notes from University of Edinburgh Global Environmental Law 
“Environmental law: text, cases and materials” by Fisher, Lange and Scotford (2013)
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