Dec 142021

Biden Administration Issues Executive Order on Sustainable Procurement

Samuel B. Boxerman and Allen S. Braddock
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On December 8, 2021, the Biden Administration issued an executive order seeking to leverage United States procurement power to promote investment in clean energy. The order sets out the following five goals: “100 percent carbon pollution-free electricity (CFE) by 2030, at least half of which will be locally supplied clean energy to meet 24/7 demand; 100 percent zero-emission vehicle (ZEV) acquisitions by 2035, including 100 percent zero-emission light-duty vehicle acquisitions by 2027; [n]et-zero emissions from federal procurement no later than 2050, including a Buy Clean policy to promote use of construction materials with lower embodied emissions; [a] net-zero emissions building portfolio by 2045, including a 50 percent emissions reduction by 2032; and [n]et-zero emissions from overall federal operations by 2050, including a 65 percent emissions reduction by 2030.”

Additionally, the executive order directs the federal government to use its procurement and operations ability with the following principles in mind: “[a]chieving climate resilient infrastructure and operations; [b]uilding a climate- and sustainability-focused workforce; [a]dvancing environmental justice and equity; “[p]rioritizing the purchase of sustainable products, such as a products without added per- or polyfluoroalkyl substances (PFAS); and [a]ccelerating progress through domestic and international partnerships.”

The executive order’s goal of seeking to purchase products without added PFAS appears to follow a December 2, 2021, letter that 62 House Democrats sent to the Council on Environmental Quality requesting that the federal government include a restriction on the use of PFAS in the December 8, 2021, executive order.

In the letter, the signees note that “[a] federal procurement mandate to steer purchasing toward PFAS-free products would help prevent PFAS from entering the environment” and that an executive order “would be a practical and immediate action to start turning the tide of products containing intentionally-added PFAS in the marketplace.” The letter also requests that a federal policy be implemented that “[s]ets a deadline for [Environmental Protection Agency] to publish environmentally preferable purchasing recommendations addressing PFAS, including criteria, specifications, and standards to support procurement of safer alternatives.”

The executive order’s goal of purchasing products without added PFAS appears to broaden the current prohibitions on the Department of Defense’s PFAS use. Currently, the fiscal year 2021 national defense authorization act includes restrictions only on the more common per- fluorinated chemicals, PFOA and PFOS. In effect, the PFAS restriction appears to have provided House Democrats with another avenue in limiting the federal government’s use of PFAS in procured products.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Samuel B. Boxerman

Washington, D.C.

sboxerman@sidley.com

Allen S. Braddock

abraddock@sidley.com

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