ABA Publishes Charles Franklin Article on Environmental Branding

The American Bar Association’s Natural Resources & Environment has published “Chasing Hazards: Toxicity, Sustainability, and the Hazard Paradox” by Akin Gump environment and natural resources senior counsel Charles Franklin.

The article discusses increasing consumer demand over the last quarter century for more environmentally friendly and sustainable products and services.  “‘Environmental branding,’” Franklin notes, “promises something for every stakeholder niche,” including manufacturers and retailers, government regulators and environmental nongovernmental organizations.

However, Franklin notes, there is a lack of agreement among these stakeholders as to “which environmental attributes matter and how they should be measured and weighted in practice.” He believes that a new paradigm must be formulated that moves away from “chasing theoretical hazards” drawn from “a list of disfavored chemicals or materials” and towards answering “more complex questions of relative risk and opportunity.”

He suggests several steps:

  • “[P]olicy makers and stakeholders need to agree on the interdependence of financial performance and long-term product and service stewardship.”
  • “[F]ocus on the product attributes and market outcomes society wants, not just the ones that are easiest to measure.”

Franklin then discusses the history of product safety regulation, the failure of the current federal legislative framework and the allure and challenges of hazard-based regulation, and analyzes the pitfalls of using hazardous substance content as the benchmark to determine the safety of a product, taking light bulbs as an example.

The article also discusses “the metrics of ‘green’” and how various EPA programs designed to measure “greenness” reduce that concept “to a single attribute or performance aspect, ignoring other competing considerations.” Franklin similarly reviews “the metrics of sustainability” and finds that that term “is no less ambiguous than terms such as ‘safer,’ ‘environmentally friendly,’ and ‘green.’”

Finally, he discusses Life Cycle Analysis, which “considers the entire life cycle of a product: raw material extraction and transport; product manufacture; product use; and end of life treatment or disposal. LCA also provides a framework for weighing different impacts within a common impact assessment framework,” and finds that “[s]ustainability analysis using Life-Cycle Thinking is doable…The challenge now is to make it affordable and manageable as a tool.”

To read the full article, please click here .