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Influence of the EU Chemicals Regulation on the US Policy Reform Debate: Is a ‘California Effect’ within REACH?

Published online by Cambridge University Press:  19 October 2012

Dirk A. Heyen
Dirk A. Heyen*
Affiliation:
Öko-Institut e.V., Institute for Applied Ecology; Environmental Law & Governance Division; Berlin, Germany. E-mail: [email protected].
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Abstract

In 2006, the EU adopted the REACH Regulation – the world’s most demanding chemicals regime so far. Even before it entered into force, the European Commission declared its ambition to make REACH a global standard, and several authors see a potential for far-reaching influence via the ‘California effect’, as conceptualized by David Vogel. Economic preconditions are indeed fulfilled with the chemicals industry being highly globalized, the EU as an attractive export market and REACH applying to imports. Following Vogel, firms exporting to the EU might have an incentive to lobby for similar requirements in their country. This article examines whether American chemical producers do, indeed, push for EU-like provisions in the debate on US policy reform. While there is some influence on the US, it is shown that REACH does not (yet) trigger a ‘California effect’. The business case does not seem to be strong enough.

Keywords

Chemicals RegulationCalifornia EffectEuropean UnionUnited StatesREACHToxic Substances Control Act (TSCA)
Type
Articles
Information
Transnational Environmental Law , Volume 2 , Issue 1 , April 2013 , pp. 95 - 115
Copyright
Copyright © Cambridge University Press 2012

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References

1 Toxic Substances Control Act; 15 U.S.C. 2601-2692 (1976).

2 Koch, L. & Ashford, N.A., ‘Rethinking the Role of Information in Chemicals Policy: Implications for TSCA and REACH’ (2005) 14 Journal of Cleaner Production, pp. 31–46Google Scholar, at 41.

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4 Regulation (EC) No. 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) [2006] OJ L396/1.

5 European Commission, Chemicals Orientation Paper, communication by Mr. Liikanen and Ms. Wallström, Brussels, 1 Apr. 2003.

6 For a long time, the US had the most stringent environmental regulation and, given its large market, it was seen as the ‘world standard-setter’, also exerting upward pressure on Europe: see D.A. Wirth, The EU’s New Impact on U.S. Environmental Regulation (2007) 144 Legal Studies Research Papers, Boston College Law School, at pp. 97, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028733. Roles of leader and laggard are said to have switched with the EU now as the ‘locus of policy innovation’: see Vogel, D., ‘The Hare and the Tortoise Revisited: The New Politics of Consumer and Environmental Regulation in Europe’ (2003) 33(4) British Journal of Political Science, pp. 557–80CrossRefGoogle Scholar, at 558. The EU is seen as ‘increasingly replacing the United States as the de facto setter of global product standards’: see Selin, H. & VanDeveer, S.D., ‘Raising Global Standards: Hazardous Substances and E-Waste Management in the European Union’ (2010) 48(10) Environment, pp. 6–18Google Scholar, at 14.

7 Vogel, D., Trading Up: Consumer and Environmental Regulation in a Global Economy (Harvard University Press, 1995)Google Scholar; and ‘Trading Up and Governing Across: Transnational Governance and Environmental Protection’ (1997) 4(4) Journal of European Public Policy, pp. 556–71. ‘California’ was chosen because of the levelling-up effect that the state’s car emissions standards once had on others. Recently, Bradford coined the term ‘Brussels effect’with regard to EU regulations: see A. Bradford, ‘The Brussels Effect’, paper presented at the Columbia Law School Faculty Workshop Series, 17 Nov. 2011, available at: http://www.scribd.com/doc/84816669/The-Brussels-Effect-Bradford.

8 For a critical overview, see Radaelli, C., ‘The Puzzle of Regulatory Competition’ (2004) 24(1) Journal of Public Policy, pp. 1–23Google Scholar. Both races-to-the-bottom (laxity) and races-to-the-top (strictness) are predicted and both have been seen as desirable or undesirable: see Swire, P.P., ‘The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition among Jurisdictions in Environmental Law’ (1996) 14(2) Yale Law & Policy Review, pp. 67–110.Google Scholar

9 In her work on the ‘Brussels effect’, Bradford (n. 7 above) differentiates between a ‘de facto Brussels Effect’ (whereby firms apply high foreign standards to all their products), and a ‘de jure Brussels Effect’ (whereby the standards are also incorporated into their home country’s law). The latter is an essential part in my definition of the ‘California effect’. Other scholars have the same understanding: see, e.g., Princen, S., ‘Trading Up in the Transatlantic Relationship’ (2004) 24(1) Journal of Public Policy, pp. 127–44Google Scholar, at 129.

10 Several authors have used the term ‘California effect’ for international and EU harmonization through which ‘green’ countries (with the help of supranational institutions) push others to set common standards at a relatively high level: see, e.g., Genschel, P. & Plümper, T., ‘Regulatory Competition and International Cooperation’ (1997) 4(4) Journal of European Public Policy, pp. 626–42Google Scholar. The term has also been applied to a levelling-up with regard to voluntary standards, not only governmental regulation: see, e.g., Prakash, A. & Potoski, M., ‘Race to the Bottom? Trade, Environmental Governance, and ISO 14001’ (2006) 50(2) American Journal of Political Science, pp. 350–64.Google Scholar

11 See Vogel, D. & Kagan, R.A., ‘National Regulations in a Global Economy’, in Vogel, D. & Kagan, R.A. (eds.), Dynamics of Regulatory Change: How Globalization Affects National Regulatory Policies (University of California Press, 2004), pp. 1–41Google Scholar, at 14–5: Although ‘market mechanisms do not exhaust the vehicles through which nations may export stricter regulatory standards, we use the term “California effect”to refer only to market mechanisms’.

12 S. Princen, ‘The California Effect in the EC’s External Relations: A Comparison of the Leghold Trap and Beef-Hormone Issues between the EC and the US & Canada’, paper prepared for the ECSA 6th Biennial International Conference, Pittsburgh, PA, 2–5 Jun. 1999, available at: http://aei.pitt.edu/2367.

13 WTO law does not allow countries to discriminate among like products through trade-related measures (Art. III of the General Agreement on Tariffs and Trade (GATT), Marrakesh (Morocco), 15 Apr. 1994, in force 1 Jan. 1995, available at: http://www.wto.org/english/docs_e/legal_e/06-gatt_e.htm). Exemptions for different standards only based on production methods are possible under Art. XX GATT, if a measure is ‘necessary for the protection of human, animal or plant life or health’, or ‘relating to the conservation of exhaustible natural resources’. While the article had been traditionally interpreted to rule out policies aimed at protecting the environment outside a country's own borders, the situation is less clear after the ruling in the Shrimp/Turtles case said that the protection of turtles as a migratory species fulfils the requirement of a ‘sufficient nexus’: see Appellate Body Report, United States – Import Prohibition of Shrimp and Certain Shrimp Products (Shrimp/Turtles), WT/DS58/AB/R, adopted on 6 Nov. 1998, available at: http://www.wto.org/english/tratop_e/envir_e/edis08_e.htm.

14 Princen, n. 9 above, at p. 141.

15 Ibid., at p. 128.

16 See Sachs, n. 3 above, and Wirth, n. 6 above. See also Heyvaert, V., ‘Globalizing Regulation: Reaching Beyond the Borders of Chemical Safety (2009) 36(1) Journal of Law and Society, pp. 110–28Google Scholar; and Scott, J., ‘From Brussels with Love: The Transatlantic Travels of European Law and the Chemistry of Regulatory Attraction’ (2009) 57 American Journal of Comparative Law, pp. 897–942.Google Scholar

17 Verband der Chemischen Industrie (VCI) [German Association of the Chemical Industry], Chemiemärkte weltweit: Umsatz, Handel und Verbrauch von Chemikalien (2011), available at: https://www.vci.de/Downloads/Media-Weitere-Downloads/2011_08_04_VCI-Studie_Chemiemaerkte_weltweit_2011.pdf.

18 Majone, G., ‘Cross-National Sources of Regulatory Policymaking in Europe and the United States’ (1991) 11(1) Journal of Public Policy, pp. 79–106Google Scholar, at 98.

19 Vogel, ‘Trading Up and Governing Across’, n. 7 above, at p. 563.

20 Selin, H., ‘Coalition Politics and Chemicals Management in a Regulatory Ambitious Europe’ (2007) 7(3) Global Environmental Politics, pp. 63–93Google Scholar, at 71.

21 This argument corresponds with the ‘race-to-the-top’ concept in Porter, M., The Competitive Advantage of Nations (Free Press, 1990)Google Scholar. Porter’s predictions, however, are unlikely to hold in chemicals regulation, as shown in Frohwein, T. & Hansjürgens, B., ‘Chemicals Regulation and the Porter Hypothesis: A Critical Review of the New European Chemicals Regulation’ (2005) 2(1) Journal of Business Chemistry, pp. 19–36.Google Scholar

22 See, e.g., F. Ackerman & R. Massey, ‘The True Costs of REACH’, Nordic Council of Ministers, 2004, available at: http://www.norden.org/da/publikationer/publikationer/2004-557/at_download/publicationfile. The EU Commission estimated costs at €2.3 billion in 11 years (around 0.05% of industry turnover, 2% of profit). Calculations in industry-financed studies ran up to €10 billion. In the first ex post study, the compliance costs estimate for the first registration period is €2.1 billion (between estimates of the Commission and industry). See Centre for Strategy & Evaluation Services, ‘Functioning of the European Chemical Market after the Introduction of REACH’, 30 Mar. 2012, available at: http://ec.europa.eu/enterprise/sectors/chemicals/files/reach/review2012/market-final-report_en.pdf.

23 American Chemistry Council, ‘Impact of the Proposed EU Chemicals Policy on U.S. Exports’, 11 Jan. 2002, available at: http://www.chemicalspolicy.org/downloads/ACC2.doc.

24 Brownfield, D., ‘Reform of U.S. Chemicals Regulation May Not Be Out of REACH’ (2008) 21(2) Global Business & Development Law Journal, pp. 223–49Google Scholar, at 239.

25 For a detailed comparison of REACH and TSCA (and the Canadian policy), see R. Denison, ‘Not That Innocent: A Comparative Analysis of Canadian, European Union and United States Policies on Industrial Chemicals’, Apr. 2007, available at: http://www.edf.org/sites/default/files/6149_NotThatInnocent_Fullreport.pdf. For a shorter but more analytical comparison, see Applegate, J.S., ‘Synthesizing TSCA and REACH: Practical Principles for Chemical Regulation’ (2008) 35 Ecology Law Quarterly, pp. 721–69.Google Scholar

26 Denison, n. 25 above.

27 Brownfield, n. 24 above, at p. 228.

28 The so-called pre-manufacture notification (PMN) must contain information (mostly confidential) on the chemical identity, physical characteristics, processing and use, and toxicity data – but only data which is already available. Firms rarely have the incentive to conduct additional testing. For that reason, health and safety data exist for only about 15% of chemicals: see US Government Accountability Office, ‘Chemical Regulation: Options Exist to Improve EPA’s Ability to Assess Health Risks and Manage Its Chemical Review Program’, GAO-05-458, Jun. 2005, available at: http://www.gao.gov/new.items/d05458.pdf. The EPA faces the same difficulties in requiring additional testing as it does with regard to obtaining data about existing chemicals. To screen new chemicals in the 90-day period, it relies mainly on existing knowledge about chemicals with similar molecular structures.

29 Substances concerned are so-called CMR (causing cancer, mutations, or being toxic to reproduction), PBT (being persistent, bioaccumulative – meaning that they build up in people and animals – and toxic); vPvB (very persistent and very bioaccumulative); or when giving rise to equivalent concerns. In Feb. 2011, the EU added the first six chemicals to Annex XIV; many more are on the ‘candidate list’.

30 Heyvaert, n. 16 above, at p. 112–4.

31 European Commission, n. 5 above.

32 Heyvaert, n. 16 above, at p. 114.

33 See also Heyvaert, V., ‘Regulating Chemical Risk: REACH in a Global Governance Perspective’, in Eriksson, J., Gilek, M. & Rudén, C. (eds.), Regulating Chemical Risks: European and Global Challenges (Springer, 2010), pp. 217–38.Google Scholar

34 Harrell, S., ‘Beyond “REACH”? An Analysis of the European Union’s Chemical Regulation Program under World Trade Organization Agreements’ (2006) 24 Wisconsin International Law Journal, pp. 471–522Google Scholar. And, so far, no country has challenged REACH (a precondition for WTO rulings).

35 Heyvaert, n. 33 above, at p. 230.

36 Verband der Chemischen Industrie, n. 17 above.

37 F. Ackerman, E. Stanton & R. Massey, ‘European Chemical Policy and the United States: The Impacts of REACH’ (2006), Working Paper 06-06, Global Development & Environment Institute, Tufts University, Sep. 2006, available at: http://www.ase.tufts.edu/gdae/Pubs/wp/06-06USREACH.pdf.

38 As a result of different categorizations, production and export figures differ. According to the VCI (n. 17 above), chemical production in the US was valued at €584 billion in 2010, with €129 billion exported. No specific figure is provided for exports to the EU, but applying the 6% from Ackerman et al. (ibid.) would mean €35 billion in EU-exports (i.e. more than 25% of total US exports), of which half would fall under REACH.

39 Scott, n. 16 above, at p. 909.

40 Heyvaert, n. 33 above, at p. 231.

41 See Bradford, n. 7 above, at p. 3. Bradford nevertheless mentions REACH as a case for the ‘Brussels effect’.

42 F. Pedersen, J. de Bruijn, S. Munn & K. van Leeuwen, ‘Assessment of Additional Testing Needs under REACH’, EU Commission, Joint Research Center, Institute for Health and Consumer Protection, Sep. 2003, available at: http://ec.europa.eu/enterprise/sectors/chemicals/files/reach/testing_needs-2003_10_29_en.pdf.

43 Sachs, n. 3 above, at p. 1863.

44 Heyvaert, n. 33 above, at p. 232.

45 Young, A.R., ‘Political Transfer and “Trading Up”? Transatlantic Trade in Genetically Modified Food and U.S. Politics’ (2003) 55(4) World Politics, pp. 457–84Google Scholar, at 483.

46 Tickner, J., Geiser, K. & Coffin, M., ‘The U.S. Experience in Promoting Sustainable Chemistry’ (2005) 12(2) Environmental Science and Pollution Research, pp. 115–23Google Scholar, at 116.

47 Wiener, J. & Rogers, M.D., ‘Comparing Precaution in the United States and Europe’ (2002) 5(4) Journal of Risk Research, pp. 317–49.Google Scholar

48 As Heyvaert shows, REACH has not much that could have not been included without the principle: see Heyvaert, V., ‘Guidance Without Constraint: Assessing the Impact of the Precautionary Principle on the European Community’s Chemical Policy’, in Etty, T.F.M. & Somsen, H. (eds.), Yearbook of European Environmental Law, Vol. 6 (Oxford University Press, 2005), pp. 27–60Google Scholar. If at all, it is the principle’s weak version since REACH takes economic aspects into account, e.g., for authorization. Keating actually calls it a ‘risk-based’ policy and TSCA ‘hazard-based’: see D. Keating, ‘EU Chemicals Policy Reaches Out Beyond Europe’, ENDS Europe, 11 Dec. 2009; available at: http://www.endseurope.com/22844/eu-chemicals-policy-reaches-out-beyond-europe.

49 Heyvaert, n. 33 above, at p. 230–1.

50 R. Denison, ‘Data and Safety Requirements for New Chemicals: China Blows Past the US’, Environmental Defense Fund, 16 Nov. 2010, available at: http://blogs.edf.org/nanotechnology/2010/11/16/data-and-safety-requirements-for-new-chemicals-china-blows-past-the-us; and A. Tracey, ‘One Solid Step for REACH, One Giant Leap for Chemicals Policy’, Environmental Defense Fund, 21 Mar. 2011; available at: http://blogs.edf.org/nanotechnology/2011/03/21/one-solid-step-for-reach-one-giant-leap-for-chemicals-policy.

51 Turkey uses the same 1 t/y threshold above which it requires data submission for existing chemicals but, with regard to hazard data, only existing information has to be submitted and only for chemicals above 1,000 t/y. The South Korean government has recently proposed a law requiring risk assessment information for chemicals above 100 t/y. Meanwhile, the Chinese regulation is more demanding than REACH on new chemicals: minimum data sets are required for all new chemicals, regardless of the production volume; risk assessments of new chemicals are already necessary when more than 1 t/y is produced.

52 Naiki, Y., ‘Assessing Policy Reach: Japan’s Chemical Policy Reform in Response to the EU’s REACH Regulation’ (2010) 22(2) Journal of Environmental Law, pp. 171–95.Google Scholar

53 Canada decided in 1999 to examine existing information on the approximately 23,000 chemicals in commerce: see Denison, n. 25 above. Based on this information, the government identified those chemicals (mainly PBT) which require further assessment and perhaps restriction (no legal details exist for this). 4,300 chemicals were identified as requiring further assessment, among them 500 as ‘high priority’.

54 Tickner et al., n. 46 above, at p. 119.

55 Safer Chemicals, Healthy Families, ‘Healthy States’, 17 Nov. 2010; available at: http://blog.saferchemicals.org/2010/11/healthy-states-protecting-families-from-toxic-chemicals-while-congress-lags-behind.html.

56 Ditz, D.W., ‘The States and the World: Twin Levers for Reform of U.S. Federal Law on Toxic Chemicals’ (2007) 8(1) Sustainable Development Law & Policy, pp. 27–30Google Scholar, at 27.

57 Scott, n. 16 above, at p. 935.

58 M.P. Wilson, D.A. Chia & B.C. Ehlers, ‘Green Chemistry in California: A Framework for Leadership in Chemicals Policy and Innovation’, California Policy Research Center, 2006, Executive Summary p. xiv, available at: http://www.ucop.edu/cprc/documents/greenchemistryrpt.pdf.

59 California Assembly Bill No. 1879, Chapter 559.

60 Me. Rev. Stat. Ann. tit. 38, §§ 1691–1699-B (2008) (Maine Toxic Chemicals in Toys Act).

61 Ibid., at p. 936.

62 Ditz, n. 56 above, at p. 27.

63 Correspondence by e-mail (questions and answers) in Jul. and Aug. 2011 with a Director for US Chemicals Management Policy (on file with the author).

64 US Government Accountability Office, ‘High-Risk Series: An Update’, GAO-09-271, Jan. 2009, available at: http://www.gao.gov/new.items/d09271.pdf.

65 Sachs, n. 3 above, at p. 1859.

66 Scott, n. 16 above, at p. 938.

67 Sachs, n. 3 above, at p. 1861.

68 See http://saferchemicals.org.

69 Naiki, n. 52 above.

70 Three key demands of the NGO network are: (i) gathering full health and environmental information on all chemicals (also regardless of volume); (ii) applying a safety standard (with consideration of total exposure) on all chemicals; and (iii) immediate regulatory action on PTBs: see Safer Chemicals, Healthier Families, ‘What We Want’, 2012, available at: http://saferchemicals.org/about/want.html.

71 Safer Chemicals, Healthier Families, ‘The Business Case for Comprehensive TSCA Reform’, 2012, available at: http://www.saferchemicals.org/resources/business.html.

72 S. 3209 (111th Congress): Safe Chemicals Act of 2010; available at: http://www.govtrack.us/congress/bills/111/s3209

73 S. 847 (112th Congress): Safe Chemicals Act of 2011; available at: http://www.govtrack.us/congress/bills/112/s847

74 H.R. 5820 (111th Congress): Toxic Chemicals Safety Act of 2010; available at: http://www.govtrack.us/congress/bills/111/hr5820

75 Fisher, E., ‘The “Perfect Storm” of REACH: Charting Regulatory Controversy in the Age of Information, Sustainable Development, and Globalization’ (2008) 11(4) Journal of Risk Research, pp. 541–63CrossRefGoogle Scholar, at 555.

76 Republican Senator Inhofe said: ‘The legislation would eliminate the current risk-based review system under TSCA and force EPA to use the precautionary principle – a regulatory principle that I adamantly oppose’: Opening Statement before the Senate Committee on Environment and Public Works, Hearing 2 Dec. 2009. Senator Vitter stated that a policy modelled on REACH is unacceptable since it would threaten innovation and US competitiveness and, assuming REACH will become a global standard, would be wrong: Verdant Law, ‘Senate Subcommittee Holds Hearing on TSCA Reform’, blog entry 6 Feb. 2011, available at: http://blog.verdantlaw.com/2011/02/06/senate-subcommittee-holds-hearing-on-tsca-reform.

77 American Chemistry Council (ACC), Testimony before the House Subcommittee on Commerce, Trade, and Consumer Protection, Hearing 26 Feb. 2009.

78 ACC, ‘10 Principles for Modernizing TSCA’, 2009, available at: http://www.americanchemistry.com/Policy/Chemical-Safety/TSCA/10-Principles-for-Modernizing-TSCA.pdf.

79 Dow Testimony and DuPont Testimony before the Senate Subcommittee on Superfund, Toxics and Environmental Health, Hearing 9 Mar. 2010.

80 National Petrochemical & Refiners Association, Testimony before the House Subcommittee on Commerce, Trade, and Consumer Protection, Hearing 26 Feb. 2009.

81 The Society of Chemical Manufacturers & Affiliates (SOCMA) is an association representing the batch, custom and specialty chemical industry with mostly small and medium-sized (but usually still exporting) member firms which produce chemicals for specific uses in small quantities. See Frohwein & Hansjürgens, n. 21 above.

82 SOCMA, ‘SOCMA’s Approach to Chemical Risk Management in 2009 and Beyond: A Response to Calls for TSCA Reform’, 2008, available at: http://www.socma.com/assets/File/socma1/PDFfiles/GR_PDF_files/SOCMAsApproach-to-CRM-in-2009andBeyond.pdf.

83 ACC, n. 77 above.

84 SOCMA, Testimony before the Senate Subcommittee on Superfund, Toxics and Environmental Health, Hearing 9 Mar. 2010.

85 National Petrochemical & Refiners Association, n. 80 above.

86 ACC, n. 78 above.

87 ACC, Testimony before the House Subcommittee on Commerce, Trade, and Consumer Protection, Hearing 29 July 2010.

88 Senate Committee on Environment and Public Works, Hearing 17 Nov. 2011, webcast available at: http://epw.senate.gov/public/index.cfm?FuseAction=Hearings.Choose&Hearing_id=a2714f34-802a-23ad-4b23-3ba5732a0172.

89 ACC, n. 87 above; and SOCMA, Testimony before the House Subcommittee on Commerce, Trade, and Consumer Protection, Hearing 29 July 2010.

90 Associations representing the food and cleaning product industries advocate the same prioritization approach as the ACC does. See B. Greggs, Testimony [on behalf of CSPA, GMA and SDA] before the House Subcommittee on Commerce, Trade, and Consumer Protection, Hearing 17 Nov. 2009. The CEO of the Soap and Detergent Association was quoted as saying ‘don’t do what Europe did’: see Keating, n. 48 above.

91 Dow Chemicals, n. 63 above.

92 Ibid.

93 See especially the battle of words between Senators and ACC President Dooley in the latest Senate Hearing (n. 88 above) on defining the safety standard.

94 ACC, n. 87 above; SOCMA, n. 84 above.

95 This lack of data has been confirmed by a representative of the German chemical industry association. To compile such a dataset would be extremely challenging since commodity flows are so complex and globalized. In fact, one has to ask single firms on the scope of REACH within their portfolio. However, for an individual firm this is seen as confidential business information (response by Dow, n. 63 above).

96 Frohwein & Hansjürgens, n. 21 above, at p. 26. This can also be seen in the fact that, while 96% of chemical firms in the EU are SMEs, large producers dominated the first registration period addressing high-volume chemicals: see Centre for Strategy & Evaluation Services, n. 22 above, at pp. 2 and 31.

97 See Centre for Strategy & Evaluation Services, ibid., at pp. 42–3. The figures, based on an industry survey, include the costs for the preparation of dossiers, collection of data from available studies, conducting new tests, development of the Chemical Safety Reports, and registration fees.

98 See Centre for Strategy & Evaluation Services, ibid., at pp. 53, 56, and Annex-9.

99 An example from the Joint Research Center, n. 42 above: average testing costs are assumed to increase from €12,000 for a substance produced in a quantity of 1–10 t/y to €208,000 for a substance produced in a quantity of more than 1,000 t/y. However, distributed over production tons over a period of 10 years, the cost burden is €404 for a substance produced in 3 t/y while it is €7 for a substance produced in 3,000 t/y.

100 See Centre for Strategy & Evaluation Services, n. 22 above, at pp. 48–50.

101 ACC, n. 77 above; Dow Chemicals, n. 63 above.

102 Majone, n. 18 above, at p. 97.

103 ACC, n. 77 above; DuPont, n. 79 above.

104 Radaelli, n. 8 above, at p. 1. Bradford (n. 7 above, at p. 4) criticizes that while the ‘California effect’ is recognized as a phenomenon, research ‘has failed to explain its actual scope beyond anecdotes and individual examples’.

105 J.P. Jacobs, ‘Lautenberg Still Vowing to Hold TSCA Reform Markup, but the Calendar is No Ally’, E&E Daily, 14 Dec. 2011, available at: http://www.eenews.net/public/EEDaily/2011/12/14/3. See also Verdant Law, ‘TSCA Reform Likely to be a Lower Priority in 2011’, blog entry 29 Jan. 2011, available at: http://blog.verdantlaw.com/2011/01/29/tsca-reform-likely-to-be-a-lower-priority-in-2011.

106 See Part 2.3, including n. 52 above, and Denison, n. 25 above.

107 Sachs, n. 3 above.

108 TSCA already imposes a reporting duty if a firm obtains information on a ‘substantial risk’. Moreover, much REACH data will be publicly available and even more by government data sharing. This disclosure effect is widely recognized by scholarship (Wirth, n. 6 above), politics (Government Accountability Office, n. 28 above) and industry (ACC, n. 78 above).

109 Sachs, n. 3 above, at p. 1846.

110 Levi-Faur, D. & Jordana, J., ‘Regulatory Capitalism: Policy Irritants and Convergent Divergence’ (2005) 598 Annals of the American Academy of Political and Social Science, pp. 191–7.Google Scholar