On July 7, 2022, the General Services Administration (“GSA”) published an Advance Notice of Proposed Rulemaking (“ANPR”) seeking public comment on revising GSA policies and procedures to reduce single-use plastics in purchased products and their packing and shipping materials. GSA is acting in furtherance of the directives set forth in Executive Order 14057, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability (discussed here), which, among other things, directed GSA to use federal procurement policy as a way to support a recycled content market. Thus, for purchases under the Federal Supply Schedule program, as well as GSA’s construction, concession, and facility maintenance contracts, GSA seeks to reduce reliance on single-use plastics and move toward what the Administration considers to be “environmentally preferable” materials.
GSA seeks public input on the potential regulations and requests feedback on a range of questions, including:
- What are the differences (performance and cost) between a paper based, aluminum based, or compostable packaging and a single-use plastic-based packaging?
- Does your company have experience using environmentally preferable packaging?
- What is the best way for GSA to aid its contractors in moving to environmentally preferable packing and packaging and how quickly should it move?
- Are there any market, regulatory, statutory or cost barriers to selecting environmentally preferable packaging such as paper based or biodegradable packaging?
- Which, if any, single use plastic items should GSA choose not to contract for through its federal supply schedules? Are there exceptions GSA should make to ensure no harm to customer agency missions?
- How could compliance with reduced or eliminated plastic content be verified?
This follows similar action by the Department of Interior, which announced on June 8, 2022 that, pursuant to Secretary Order No. 3407, the agency intends to issue guidance to “identify single-use plastic product reduction opportunities” and “develop sustainable procurement plans to support . . . phasing out single-use plastic products by the end of 2032.”
This ANPR is firmly in line with other GSA actions to leverage federal procurement power and require federal contractors to provide more environmentally friendly materials, including concrete and asphalt (discussed here and here). These actions are particularly important because the FAR Council is still investigating ways to implement the White House’s larger objectives of requiring all major agency procurements to minimize the risk of climate change and requiring all major federal contractors to publicly disclose GHG emissions and climate-related financial risk (discussed here and here). Furthermore, those larger objectives undoubtedly became much more complicated with the Supreme Court’s recent landmark decision in West Virginia v. EPA, in which the Court constrained the ability of federal agencies to affect significant economic changes by way of environmental regulations in the absence of specific congressional direction.
For further information, please contact:
Paul Freeman, Partner,Crowell & Moring
pfreeman@crowell.com
