EPA Releases Draft Procurement Guidelines for Product Environmental Performance Standards and Ecolabels

On November 20, 2013, the United States Environmental Protection Agency (EPA) announced its intent to release for comment proposed Draft Guidelines for Product Environmental Performance Standards and Ecolabels for Voluntary Use in Federal Procurement (Draft Guidelines). EPA states the Draft Guidelines — developed by EPA, the General Services Administration (GSA), and other federal agencies following several “listening sessions” with a wide range of stakeholders — are intended to help federal purchasers identify and select greener products and meet sustainability purchasing goals. Under several federal purchasing mandates, including but not limited to Executive Order 13514 (Federal Leadership in Environmental, Energy and Economic Performance) and the Federal Acquisition Regulation (FAR) 23.103, federal agencies must ensure that 95 percent of their acquisitions and contracts are sustainable, such as by buying environmentally preferable products.

The Draft Guidelines and a pre-publication version of the Federal Register notice announcing the availability of the Draft Guidelines are available online. A 90-day comment period will be set once the Federal Register is published, which is expected in early December 2013.

Background

In early 2011, EPA, GSA, and other federal agencies created an Interagency Workgroup to identify existing environmental purchasing requirements for federal buyers and existing guidelines and protocols for standards and ecolabels. The Workgroup convened several “listening sessions” with a wide range of stakeholders that focused on how the federal government can be more sustainable in its purchasing, and how federal purchasers can best meet the numerous federal requirements for the procurement of sustainable and environmentally preferable products and services. While federal agencies currently use some programs to assist them in purchasing products that meet federal standards for energy, water, and safer chemicals (e.g., Energy Star, Watersense, and Design for the Environment ecolabels), there are many other products that are not covered by such federal ecolabels. EPA states that the “lack of guidance on using other product environmental performance standards and ecolabels often results in an inconsistent approach by Federal purchasers and confusion and uncertainty for vendors and manufacturers.” EPA states that the “challenge for federal buyers is sorting through these hundreds of other products with non-governmental standards and ecolabels that claim to be safer or environmentally friendly.”

Following those listening sessions, the Interagency Workgroup developed an initial set of draft guidelines. The Interagency Workgroup then tested the feasibility and appropriateness of the draft guidelines, including conducting a survey of a subset of government and non-governmental environmental performance standards and ecolabel developers. EPA then developed the Draft Guidelines based on the results from that survey and other external stakeholder input.

Draft Guidelines

Under the Draft Guidelines, one or more non-governmental (private sector) organizations with expertise in environmental standards and ecolabels would work with EPA and key stakeholders to develop a process for applying the guidelines to private sector environmental standards and ecolabels. The Draft Guidelines include criteria to assist in identifying those private sector standards and ecolabels federal purchasers should consider when buying greener products. Specifically, the Draft Guidelines are divided into four sections addressing various aspects of product environmental performance standards and ecolabels:

• Section I, “Guidelines for the Process for Developing Standards” addresses the procedures used to develop, maintain, and update a product environmental performance standard.
   
• Section II, “Guidelines for the Environmental Effectiveness of the Standards” addresses the criteria in the standard or ecolabel that support the claim of environmental preferability.
   
• Section III, “Guidelines for Conformity Assessment” addresses the procedures and practices by which products are assessed for conformity to the criteria specified by standards and ecolabeling programs.
   
• Section IV, “Guidelines for Management of Ecolabeling Programs” addresses the organizational and management practices of an ecolabeling program.

Recognizing that the level to which sustainability practices have been incorporated varies by industry sector and even from product category to product category, the Draft Guidelines would be applied on a product category by product category basis. A list of product standards and ecolabels that meet the Draft Guidelines could be created and then considered by federal purchasers, along with other federal mandates and requirements for federal purchasing.

EPA is seeking comments on the Draft Guidelines in general and has posed these specific areas for comment:

1. How might the Guidelines benefit the broader marketplace?
    
2. Are there any draft Guidelines that should be removed or modified? Are there gaps in the draft Guidelines that could be addressed by a new Guideline(s)?
    
3. Are the designations of “baseline” and “leadership” in the draft Guidelines understandable? Can the designations be easily implemented? Do they appropriately reflect varying approaches in the marketplace today?
    
4. How should the leadership Guidelines be applied to standards and ecolabels in different product categories (e.g., different weightings in an overall conformity assessment scheme)?
    
5. What processes, approaches, measures, and mechanisms should be used to determine conformance with the Guidelines, if they are finalized and implemented?
    
6. Under what circumstances and under what authorities, if any, should the Federal Government require a particular type of conformity assessment to provide adequate confidence that the products have met a particular environmental performance standard or ecolabel?
    
7. Are there alternatives to the pilot project that EPA should consider?
    
8. If EPA were to move forward with a pilot project to test the proposed standards and ecolabels assessment approach, which product categories should be prioritized?
    
9. What challenges need to be addressed/resolved in implementing the proposed Guidelines in order to be a transparent, fair, and consistent process?

Analysis

EPA states that the Draft Guidelines are not intended to discontinue or diminish procurement of products conforming to government standards and ecolabels, but rather supplement existing mandates and government standards and ecolabels. Although only intended expressly to help guide federal purchasing, EPA acknowledges that the Draft Guidelines could affect a broader consumer marketplace to the extent that the Draft Guidelines increase the availability of greener and safer products that are purchased by both the government and consumers. EPA provided examples, including cleaning products, paper, and building materials. The Draft Guidelines thus have the potential to affect a wide array of products and should be reviewed carefully to ensure that EPA is selecting appropriate criteria.