Golden Gate University Environmental Law Journal Volume 6 Article 4 Issue 2 Pacific Region Edition June 2013 Where Will All the Waste Go?: Utilizing Extended Producer Responsibility Framework Laws to Achieve Zero Waste Anthony A. Austin Follow this and additional works at: http://digitalcommons.law.ggu.edu/gguelj Part of the Environmental Law Commons Recommended Citation 6 Golden Gate U. Envt'l L. J. 221 (2013). This Article is brought to you for free and open access by the Academic Journals at GGU Law Digital Commons. It has been accepted for inclusion in Golden Gate University Environmental Law Journal by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. Austin: Zero Waste WHERE WILL ALL THE WASTE GO?: UTILIZING EXTENDED PRODUCER RESPONSIBILITY FRAMEWORK LAWS TO ACHIEVE ZERO WASTE ANTHONY A. AUSTIN* I. INTRODUCTION The United States has a waste problem. It represents only five percent of the world population, yet it generates twenty-five to thirty percent of the world’s waste.1 In 2008, the United States generated 389.5 million tons of municipal solid waste (MSW).2 As our economy and population continue to grow, our waste will continue to grow as well.3 The obvious dilemma is that all of this waste, the byproduct of our economic advances, creates significant adverse environmental and public *Judicial Law Clerk to the Honorable Diana L. Terry, Colorado Court of Appeals. J.D., Golden Gate University School of Law (2011); LL.M., Environmental and Natural Resources Law and Policy, University of Denver Sturm College of Law (2012). The author would like to thank his wife, Adrienne, colleague Luthien Niland, and Professor Justin Pidot for their endless support and assistance throughout this entire process, as well as the Golden Gate University Environmental Law Journal editorial board and Professor Ed Baskauskas for their much appreciated editing. The author would also like to thank Professor Rock Pring for his encouragement and for making this article possible. The views expressed in this article are solely those of the author and do not represent the views of Judge Diana L. Terry or the Colorado Court of Appeals. 1 Robert Malone, World’s Worst Waste, FORBES.COM (May 24, 2006), www.forbes.com/2006/05/23/waste-worlds-worst-cx_rm_0524waste.html; BRENDA PLATT ET AL., INST. FOR LOCAL SELF-RELIANCE, STOP TRASHING THE CLIMATE 1 (2008), available at www.stoptrashingtheclimate.org/fullreport_stoptrashingtheclimate.pdf. 2 Rob van Haaren et al., 17th Nationwide Survey of MSW Management in the U.S.: The State of Garbage in America, 47 BIOCYCLE 16, 16 (2010), available at www.seas.columbia.edu/earth/wtert/sofos/SOG2010.pdf. 3 See 42 U.S.C.A. § 6901(a) (Westlaw 2013); Steffen Lehmann, Resource Recovery and Materials Flow in the City: Zero Waste and Sustainable Consumption as Paradigms in Urban Development, 11 SUSTAINABLE DEV. L. & POL’Y 28, 30 (2010). 221 Published by GGU Law Digital Commons, 2013 1 Golden Gate University Environmental Law Journal, Vol. 6, Iss. 2 [2013], Art. 4 222 GOLDEN GATE UNIV. ENVIRONMENTAL LAW J. [Vol. 6 health effects when landfilled or incinerated.4 This Article explores the use of extended producer responsibility (EPR) laws to achieve the ultimate waste management goal: “zero waste.” Zero waste is achieved through the complete diversion of MSW from landfills and incinerators, resource conservation, and sustainable product redesign. Historically, MSW has been dumped in landfills or deposited in waste incinerators, practices that have allowed for robust commerce and economic growth. However, these typical waste management practices cause vast amounts of air, water, and soil pollution, increased greenhouse gas emissions, and other adverse environmental and public health issues associated with burying or burning our garbage. In response to these growing concerns, many cities and counties across the country have instituted zero waste policies by using recycling and composting and moving away from the common practices of burning or burying their waste. San Francisco’s zero waste policy is hailed as the most successful in the United States, with approximately seventy-seven percent diversion from landfills or incinerators.5 San Diego and Los Angeles each divert about two thirds of their waste; Seattle diverts about fifty-four percent.6 Despite the growing number of cities adopting zero waste policies, less than one quarter of all MSW generated in the United States is recycled or composted.7 Moreover, as cities strive toward achieving 100 percent diversion it will become much more difficult to actually achieve complete waste diversion. Design, cost, and technological impediments prevent complete waste diversion. Recycling or composting the remaining products in the waste stream is not possible due to product composition, the cost for localities to bear, or the localities’ lack of technological ability to recover all products in the waste stream. EPR laws, which require the remaining products in the waste stream to be taken back by their producers and require the producers to engage in mandated resource recovery, may provide the solution to attaining the zero waste goals. This Article proposes a hybrid approach, under which localities recycle and compost to the maximum extent practicable, and an additional EPR framework law targets the remaining products in the waste stream by requiring the producers to take them back. This use of an EPR law in conjunction with zero waste policies would have many environmental and public health benefits. 4 Lehmann, supra note 3, at 29. 5 David Ferry, The Urban Quest for “Zero” Waste, WALL ST. J., Sept. 12, 2011, at R7. 6 Id. 7 Van Haaren et al., supra note 2, at 20. This calculation is based on data from 2008. http://digitalcommons.law.ggu.edu/gguelj/vol6/iss2/4 2 Austin: Zero Waste 2013] ZERO WASTE 223 To best achieve these goals, an effective EPR approach must contain certain adaptable elements. States have already been playing an active role in adopting legislation to reduce waste and the various externalities associated with its disposal. States should continue to be the standard bearers in developing EPR framework laws. Any EPR law should rely on an adaptable “framework” mechanism that allows the state to more efficiently target products posing waste management, public health, and environmental problems. Such a law should also include mandatory resource recovery goals once the product is collected, penalty and enforcement provisions, and vest decision-making authority with the state’s selected agency as opposed to the state’s legislature. Although no such state EPR law currently exists, the landscape of EPR laws in the United States is changing rapidly. Generally, states target one product per law, thereby requiring the legislature to pass a new law every time a product causes waste management and environmental problems. As of January 2013, thirty-two states have adopted seventy-five EPR laws as part of their statewide waste management policies.8 In 2010, Maine became the first and only state in the nation to adopt a framework law that, in contrast to the prevailing product-by-product approach, utilizes an established set of factors to determine whether to include products in its EPR take-back program.9 Zero waste and EPR policies together can provide a solution to managing and preventing our increasing amounts of waste. Part II of this Article will explain how MSW is currently managed in the United States, what exactly MSW is and how much we are discarding or incinerating, as well as the environmental and public health impacts from our increasing amounts of waste. Part III will introduce and discuss the zero waste doctrine, its benefits, and the current status of zero waste policies in the United States. Part IV will then present the doctrine of EPR, its goals and purposes, and the necessary components of a successful EPR framework law. Finally, Part V will propose recommendations for future state EPR legislation and will also explore potential constitutional challenges to such EPR laws, as well as federal EPR legislation as an alternative. 8 Extended Producer Responsibility State Laws as of January 2013, PROD. STEWARDSHIP INST., www.productstewardship.us/displaycommon.cfm?an=1&subarticlenbr=280 (last visited Jan. 2013). 9 See Press Release, Prod. Policy Inst., First State Producer Responsibility “Framework” Law Passed in Maine with Unanimous Bi-Partisan and Chamber of Commerce Support (Mar. 25, 2010), available at www.productpolicy.org/ppi-press-release/first-state-producer-responsibility- framework-law-passed-maine-unanimous-bi-partis. Published by GGU Law Digital Commons, 2013 3 Golden Gate University Environmental Law Journal, Vol. 6, Iss. 2 [2013], Art. 4 224 GOLDEN GATE UNIV. ENVIRONMENTAL LAW J. [Vol. 6 II. AN OVERVIEW OF MUNICIPAL SOLID WASTE IN THE UNITED STATES The United States disposes of a staggering amount of MSW, despoiling the land, air, and water, while contributing to climate change. State and local governments have taken the lead in reducing disposal practices that cause these manifold problems. However, current policies have not, and likely cannot, fully address all the issues. Even the most aggressive efforts by municipalities to facilitate recycling and composting fail to achieve complete diversion.10 The EPA defines MSW as that which “we commonly use and throw away,” including “everyday items such as product packaging, grass clippings, furniture, clothing, bottles, food scraps, newspapers, appliances, batteries, and tires.”11 MSW in the United States is generally 10 This Article focuses on MSW and will not discuss the regulation or disposal of hazardous waste, which is managed through cooperative federalism between states and the federal government pursuant to the Resource Conservation and Recovery Act, 42 U.S.C.A. §§ 6921-6939F (Westlaw 2013). While some solid waste products such as batteries and electronics contain hazardous materials, they will be included within the MSW group for the purposes of this Article.