"Sinclair" Fee Bills Come Out of the Woodwork

By Loretta Macktal, Executive Assistant to the Vice President, Government Relations

Capitol Update, Feb. 12, 2003 Share this on FacebookTweet thisEmail this to a friend

AB 302 (Wilma Chan D-Oakland), introduced last week, would ban a class of allegedly bioaccumulative flame retardant chemicals - polybrominated biphenal ethers (PBDEs) - by January 2006. PBDEs are used in a broad range of consumer products including computer plastics, polyurethane foam products, and textiles. According to the author and the sponsors (California Public Interest Research Group), these chemicals are released slowly over the life of the product leading to increased concentrations in humans and the environment. Health endpoints of concern identified in a 2001 report by the state Office of Environmental Health Hazard Assessment include thyroid hormone disruption, neurodevelopmental disorders and cancer. The proponents have associated PBDEs with PCBs, which were banned by Congress in 1976 based on concerns about toxicity and persistence in the environment.

While PBDEs remain in commerce, the bill would impose a per-gallon fee on PBDE chemical sales, presumably to "incentivize" manufacturers to switch to alternatives and to cover the cost of future government programs to mitigate the environmental effects of PBDE use. This approach is consistent with proposals put forward by the environmental community in its "Green Watchdog" report, released on February 4. That report cites the California Supreme Court's 1997 decision in Sinclair Paint vs. State Board of Equalization as justification for enacting new "fees" by simple majority vote to subsidize a broad expansion of state environmental programs. Given the disastrous condition of the state budget, "Sinclair" fees will be a popular source of funds for environmental programs in the coming year.

AB 302 would also require a warning label on all products containing PBDEs and includes intent language stating that "it is necessary for the state to develop a precautionary approach regarding the production, use, storage and disposal of products containing brominated fire retardants." This statement is a not so thinly veiled reference to another concept championed by the environmental community - the so-called "precautionary principle" - which holds that absent full scientific certainty, government should take preemptive measures as a first resort to protect the environment. As currently drafted, AB 302 could give this concept a toehold in the California Health and Safety Code.
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