On December 28, 2020, the House overrode President Trump’s veto and passed the National Defense Authorization Act for Fiscal Year 2021 (H.R. 6395) by a vote of 322 to 87, and the Senate passed the bill on January 1, 2021, by a vote of 81 to 13. Subtitle E of Title II of the Act (Subtitle E) includes the text of the bipartisan Sustainable Chemistry Research and Development Act of 2019. Subtitle E will establish an interagency working group led by the Office of Science and Technology Policy (OSTP) to coordinate federal programs and activities in support of sustainable chemistry (also called green chemistry).

Overview

No later than 180 days after enactment, an interagency working group will be convened to oversee the coordination of federal programs and activities in support of sustainable chemistry. To be terminated ten years after the date of the enactment, the working group would be co-chaired by the Director of OSTP and a representative from the U.S. Environmental Protection Agency (EPA), the National Institute of Standards and Technology (NIST), the National Science Foundation (NSF), or the U.S. Department of Energy (DOE), as selected by the Director of OSTP.

Implementation

Subtitle E also includes a roadmap for the working group to follow no later than two years after the date of enactment. According to Subtitle E, the working group will have to consult with relevant stakeholders, including industry and academia representatives, national labs, the federal government, and international entities, to develop and update, as necessary, a consensus definition of “sustainable chemistry” that will guide the activities under Subtitle E. In addition, the working group will develop a working framework of attributes characterizing, and metrics for assessing, sustainable chemistry. In developing the framework, the working group shall:

• Seek advice and input from stakeholders (including business and industry representatives; the scientific community; the defense community; the defense community; state, tribal, and local governments; non-governmental organizations (NGO); and other appropriate organizations);

• Consider existing definitions of, or frameworks characterizing and metrics for assessing, sustainable chemistry already in use at federal agencies;

• Consider existing definitions of, or frameworks characterizing and metrics for assessing, sustainable chemistry already in use by international organizations of which the United States is a member; and

• Consider any other appropriate existing definitions of, or frameworks characterizing and metrics for assessing, sustainable chemistry.

As part of Subtitle E’s implementation roadmap, the working group will assess the state of sustainable chemistry in the United States as a key benchmark from which progress under described activities can be measured, including assessing key sectors of the U.S. economy, key technology platforms, commercial priorities, and barriers to innovation. Subtitle E would require the working group to coordinate and support federal research, development, demonstration, technology transfer, commercialization, education, and training efforts in sustainable chemistry, including budget coordination and support for public-private partnerships, as appropriate. In addition to these measures, the working group will be responsible for identifying any federal regulatory barriers to, and opportunities for, federal agencies facilitating the development of incentives for development, consideration, and use of sustainable chemistry processes and products. The working group will also identify major scientific challenges, roadblocks, and hurdles to transformational progress in improving the sustainability of the chemical sciences.

Report to Congress

No later than two years after the date of enactment, the working group will be responsible for the submission of a report to certain Senate and House Committees. The report will include summaries of federally funded sustainable chemistry activities and financial resources, as well as an assessment of the current state of sustainable chemistry in the United States and recommendations for future program activities. In addition to submitting the report to Congress, the working group will also be responsible for submitting it to the Comptroller General of the United States for consideration in future Congressional inquiries.

Limitations

Funding under Subtitle E will be available only for pre-competitive activities and will not be used to promote the sale of or to disparage a specific product, process, or technology. Agencies participating in the working group may, however, facilitate and support, through financial, technical, or other means, the creation of partnerships between higher education institutions, NGOs, consortia, or companies across the value chain in the chemical industry.

Other limitations include prohibiting the use of funds to: (1) support or expand a regulatory chemical management program at an implementing agency under a state law; (2) construct or renovate a building or structure; or (3) promote the sale of or disparage a specific product, process, or technology.

Commentary

Subtitle E of the Act is a long-overdue initiative to coordinate efforts between and among federal departments and agencies (collectively, Agencies) to fund and promote sustainable chemistry. It will take some effort for the new interagency group to create a workable definition of sustainable chemistry and associated metrics. Perhaps the consensus standard (ANSI/NSF 355) developed in 2010 can provide a starting point for such metrics.

One of the major challenges is how to weight different endpoints that are identified. For example, should a climate change endpoint be given equal weight to aquatic toxicity? Alternatively, will endpoints not be weighted, effectively making all identified endpoints equally important? It will also take effort for Agencies to identify current funding and to ensure that there is not duplicative funding -- although given the dearth of federal research funding going to green or sustainable chemistry, this may not be a significant issue.

Subtitle E of the Act puts EPA’s Green Chemistry Challenge (formerly the Presidential Green Chemistry Challenge) on more solid footing as the Act directs EPA to “incentivize or recognize actions that advance sustainable chemistry products, processes, or initiatives, including through the establishment of a nationally recognized awards program.” The Act also puts a greater emphasis on training and education, another area of effort that has languished within federal Agencies.

Perhaps most intriguing to B&C clients is the requirement that Agencies “identify any Federal regulatory barriers to, and opportunities for, Federal agencies facilitating the development of incentives for development, consideration and use of sustainable chemistry processes and products.” As we have written on many occasions, it is B&C’s view that EPA’s implementation of the Toxic Substances Control Act (TSCA) creates a bias against new chemicals, putting new, greener chemistry technologies at a disadvantage in commercial markets. In our view, EPA has the necessary authority under both TSCA and the Pollution Prevention Act to consider environmental and health benefits of new chemicals when making a decision about the necessity of issuing controlling regulations for new chemicals. Subtitle E of the Act now requires that EPA consider whether its current practices are a barrier (or incentive) to new, sustainable chemistry technologies.

We are optimistic that Subtitle E of the Act will increase focus on federal research and development and raise awareness of the benefits of more sustainable chemistry, and are hopeful that it will also put novel sustainable chemistry on (at least) an equal regulatory playing field when compared to incumbent, less sustainable options.