This article introduces “The Concept of Essential Use: A Novel Approach to Regulating Chemicals in the European Union,” a new Open Access article in Transnational Environmental Law.

Attending a ‘One Planet’ conference in Paris at the beginning of 2021, Greta Thunberg, the young Swedish environmental campaigner, tweeted:

Bla bla nature

Bla bla important

Bla bla ambitious

Bla bla green investments

Bla bla great opportunity

Bla bla green growth

Bla bla net zero

Bla bla step up our game

Bla bla hope

Bla bla bla…*

For anyone with children Greta Thunberg’s age frustration at the lack of effective and meaningful progress on environmental policies is very recognizable. Big promises. Little action. Having spent the past twenty-five years teaching, studying, and practising environmental law it is good to be reminded by our teenagers that when it comes to environmental legislation there may, indeed, have been a lot more ‘bla bla bla’ than sound, effective environmental legislation over the past two and half decades.

It is for this reason that we were both intrigued and interested by a paper published in Environmental Sciences: Processes & Impacts on the concept of ‘essential use’ as a means to phase out a group of hazardous substances known as PFAS, with Ian Cousins as lead author. Per- and polyfluoroalkyl substances (PFAS) are a group of man-made chemicals including perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS), both of which feature in the recent Hollywood film Dark Waters. Scientists and academics from differing backgrounds and disciplines are increasingly voicing their concern about the negative impact PFAS are having on public health and the environment, which are responsible for polluting large swathes of soil, water  ̶  and us.

Robert Bilott, the US attorney acting on behalf of victims of PFOS/PFOA poisoning in West Virginia, points out that it took twenty years of litigation (still ongoing) before victims could be compensated from the damage caused by PFOS and PFOA. Many victims passed away from cancers induced by these highly hazardous substances before they received any form of compensation. Environmental scientists estimate that up to 4,700 PFAS chemicals have been produced since the 1940s. A recent article in Scientific American states there are 9,000 known PFAS currently being used in consumer and industrial products.

Fearing that it may take an equally long time to find a causal link between 4,700 PFAS and to determine exactly how these hazardous substances should be controlled, Cousins and co-authorsrevisit a hitherto little-known exemption in the Montreal Protocol on Substances that Deplete the Ozone Layer. Decision IV/25 of the Montreal Protocol allows the continued use of an otherwise prohibited substance on condition that the substance is ‘essential’ and ‘necessary’ for the health, safety and critical functioning of society. In November 2020 the European Commission pledged to reduce PFAS through the application of ‘essential use’ in its newly proposed ‘Chemical Strategy for Sustainability: Towards a Toxic Free Environment’.

In our paper in Transnational Environmental Law (TEL) we take stock of whether and, if so, where precedent for an essential use approach to regulating chemicals exists in international and/or EU legislation. Do they already provide for an essential use approach to regulating chemicals in the way Cousins and co-authorswere proposing? Hazardous substance regulation is a notoriously complex area of environmental legislation, fiendishly entangled and, in the EU, notable for its arcane procedures in ‘comitology’ – a form of delegated decision making. We were fearing the proverbial needle in a haystack. The EU’s flag-ship REACH Regulation in consolidated version is 530 pages long. Alongside REACH a multitude of sectoral Directives and Regulations applicable to downstream users of chemicals – some of which will be hazardous – cover anything from pesticides, biocides and food additives to toys and electrical waste. There are bespoke Regulations and/or Directives on labelling, transportation, waste disposal, and storage. Yet more rules exist seeking to regulate occupational hazards as well as differing rules on pollution from industrial emissions.

Whilst it would be tempting to blame the EU for all this ‘sticky red tape’, the US too relies on often opaque statute and Agency guidance to, among others, control chemicals such as PFOS. The US Clean Air Act alone contains 293 pages with sections printed in double columns. In terms of case law most of the cases concern judicial review of either product bans or approvals, which seek to determine whether the Commission has overstepped its authority in prohibiting or restricting the use of any given chemical.

The weakness in the risk approach to regulating hazardous substances is what some academics argue leads to ‘paralysis by analysis’ – too many substances, not enough toxicologists – and a huge backlog of under-researched, potentially hazardous and or problematic substances circulating on the market. Critics of the existing method point to the length of time it took to analyze two PFAS (PFOS and PFOA) let alone a further 4,700 problematic PFAS. Categorizing the use of the substance (as opposed to the risk) might change that.

An easy roll-out of an essential use concept is neither inevitable nor secure. In the paper we point to a number of challenges which, if not properly addressed, may yet trip up the roll-out of essential use in EU hazardous substance legislation. By way of example, whilst many may agree that the use of PFAS in ski waxes and carpets is hardly essential for the health, safety or critical functioning of society, should PFAS be banned for use in outdoor raincoats favoured by sheep farmers in Wales? If the EU is genuinely committed to a toxic-free Europe and delivering on a Green New Deal then fleshing out a substantive essential use principle to regulate hazardous substances that stretches beyond PFAS, beyond derogations and beyond comitology could be highly effective. For young environmental campaigners such as Greta Thunberg and to many of her generation essential use may be the beginning of the change they demand of today’s politicians. An essential use approach to regulating hazardous substances could be one of the ‘happy ending’ stories everyone craves in a post-pandemic Europe. Future generations can then no longer accuse this generation of too much bla bla bla.

Read “The Concept of Essential Use: A Novel Approach to Regulating Chemicals in the European Union,” a new Open Access article in Transnational Environmental Law.