Environmental Law ReSource : Environmental Lawyer & Attorney : Reed Smith Law Firm : Climate Change, Sustainability

Following its official launch on June 1, the European Chemicals Agency (ECHA) has started to accept pre-registrations of chemicals under the REACH (Registration, Evaluation and Authorization of Chemicals) legislation. The 200 staff working at the agency have a mammoth task ahead of them, given that some 200,000 pre-registrations are expected.

REACH is designed to cut health risks associated with everyday chemicals by requiring companies to register safety information with the ECHA, and if necessary to substitute dangerous chemicals with safer alternatives.

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As of July 1, 2008, deca-BDE flame retardants are prohibited from new electrical and electronic equipment sold on the European Union market. The prohibition follows the European Court of Justice’s (ECJ) decision that annulled (i.e., voided) an exemption for deca-BDE (decabromodiphenyl ether) under the EU’s Restriction of Hazardous Substances (RoHS) Directive. While underscoring a global trend away from the use of deca-BDE, the decision also provides some insight into the judicial scrutiny of environmental legislation in the EU.

Although the RoHS Directive restricts the use in certain electrical and electronic equipment of six chemicals, it does provide for exemptions. Based on a risk assessment performed under the Existing Substances Regulation and, importantly, not the RoHS Directive, the European Commission had granted an exemption for deca-BDE. 

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This post was written by David Wagner.

On Oct. 8, 2008, the European Commission amended REACH to remove nanoscale carbon and graphite from its list of exempted substances. The substances were originally listed in REACH's Annex IV, meaning they were exempt from REACH requirements because they were considered to be of minimum risk because of their intrinsic properties. Following a review and a report by an expert committee, the Commission changed its position. According to the regulation, there is insufficient information for carbon (CAS No. 7440-44-0) and graphite (CAS No. 7782-42-5) to be listed in Annex IV, "in particular due to the fact that the concerned EINECS and/or CAS numbers are used to identify forms of carbon or graphite at the nano-scale, which do not meet the criteria for inclusion" in Annex IV. As a result, both substances are now required to be registered under REACH.

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This post was written by Ruth N. Holzman, James R. Eskilson, Todd O. Maiden, Eric M. McLaughlin, and Jennifer Smokelin.

There’s good news for commercial building owners who have wanted to “go green,” but have been waiting to see whether the tax incentives for green buildings, set to expire at the end of 2008, would be extended. The historic financial rescue bill (H.R. 1424), signed by President Bush on Friday, Oct. 3, 2008, also included the Tax Extenders and Alternative Minimum Tax Relief Act of 2008 (“TEAMTRA”). Among the tax-extenders in TEAMTRA was a five-year extension of the tax incentives for “green” commercial buildings.

Internal Revenue Code Section 179D gives owners of commercial real property a tax break by allowing them to deduct the cost of certain energy-efficient property. It applies to both new construction and to retrofits of existing construction. Prior to TEAMTRA, this tax break only applied to property placed in service on or prior to Dec. 31, 2008. With the extension of this provision to Dec. 31, 2013, property owners now have sufficient time to design, construct and complete projects that will qualify for this tax break. Although numerous bills had been introduced in Congress that would have raised the amount deductible under Section 179D, TEAMTRA did not contain any increase in this amount. The deduction is still limited to the product of $1.80 multiplied by the square footage of the building.

For a brief overview of the Section 179D deduction for “green” buildings, see “New Tax Incentives for ‘Green’ Buildings Have Owners Seeing Green,” in The Critical Path, Fall 2006; for a more detailed discussion, see "New Tax Incentives for 'Green' Buildings Have Owners Seeing Green," in the ABA's The Construction Lawyer, Summer 2007.

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This post was written by Lawrence A. Demase, Russell R. Eggert, Todd O. Maiden, Louis A. Naugle, Christopher L. Rissetto, Harley N. Trice, II, and Steven M. Nolan.

In an Environmental E-Flash in July, Reed Smith reported that the Court of Appeals for the District of Columbia Circuit had vacated the United States Environmental Protection Agency’s Clean Air Interstate Rule (“CAIR”), North Carolina v. Environmental Protection Agency, 531 F.3d 896 (D.C. Cir. 2008) (finding that CAIR had “more than several fatal flaws”). 

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This post was written by Todd O. Maiden and Eric M. McLaughlin.

On Sept. 29, 2008, California Gov. Arnold Schwarzenegger signed two green chemistry bills—AB 1879 and SB 509—into law. This new green chemistry law totally refocuses chemical regulation in California, from reacting to chemicals after they have already been used in manufacturing or industrial processes, to assessing and regulating the use of chemicals in the design stage. The regulatory system created by the law will evaluate chemical risks and impose tailored restrictions based on science and the real-life impacts of chemical usage, rather than instituting an abstract chemical ban. California’s green chemistry law will take effect Jan. 1, 2009, which means the rulemaking process for the numerous regulations needed to implement the system will begin in earnest.

To achieve the goal of a regulatory system based on science and the real-life impacts of chemical usage and exposure, the green chemistry law was drafted using a comprehensive and collaborative approach. Implementation of the regulations will involve an interagency consultative process, incorporating chemical-related research done by other government agencies, and comments from stakeholders and the public. This approach, combined with the notice and comment requirements of the California Administrative Procedure Act, is intended to eliminate the ad hoc rulemaking seen with other environmental laws, such as California’s Proposition 65. Additionally, the scope of the law includes all chemicals used in consumer products, unlike the current patchwork of California laws that address only select product categories, such as lead in jewelry and on lunchboxes, chemicals in food containers, and household products such as light bulbs and batteries.

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