SHANGHAIED? HOW THE COMMERCIAL VALUE OF ELECTRONIC WASTE HAS DETERRED EFFORTS TO REGULATE ITS MOVEMENT FROM THE UNITED STATES TO CHINA THE RESULTING IMPACT ON THE CHINESE ECONOMY AND ENVIRONMENT∗ † ABSTRACT This article explores the legal and economic issues complicating the transboundary regulation of electronic waste (eWaste) generated in the United States, exported extraterritorially under the guise of commerce, and disposed of improperly in China. The economic issues stem from the commercial value of used electronic products on the Chinese market; notably the practical value of reusable electronic equipment and the material value of reclaimable resources found within used electronic products (e.g., copper, aluminum, iron, plastics, and steel). The legal issues stem from international and national policies designed to facilitate the transboundary movement of commerce between nations of the world: trade policies favorable to industrialized countries such as the United States and China. Federal, international, and Chinese laws regulating hazardous materials exportation from the U.S. to China provide exemptions for the legal exportation of used electronic products intended for recycling, reclamation, and/or reuse. When these legitimately exported “products” are mishandled during ∗ Copyright 2007 by . All rights reserved. This article was originally written to satisfy the requirements of the Second-Year Seminar course offered at the William S. Richardson School of Law, University of Hawai‘i at Mānoa. The author wishes to thank Professor Charles D. Booth, who supervised the writing of this article and encouraged the author to explore this topic. All errors and omissions are, of course, the author’s own. † J.D. Candidate 2008, William S. Richardson School of Law, University of Hawai‘i at Mānoa; B.S., Environmental Health and Safety, Oregon State University. 1 transport or disposal, however, they are transformed – both physically and statutorily – into a hazardous waste. The substantive environmental and human health impacts resulting from the mismanagement of eWaste on Chinese soil have manifested in financial losses, prompting the Central Chinese Government to take legislative action. In 2007, China passed a law designed to fully regulate the importation and management of eWaste and electronic products; part of a nationwide effort to minimize the fiscal repercussions contributable to environmental and human heath deterioration. As U.S. Congress continues to discuss our duties to other nations currently accepting our hazardous wastes, China hopes its domestic regulations and policies are enough to control the mounting threats posed by the mismanagement of imported electronic waste. I. INTRODUCTION A 10-year-old girl in the southern province of Guangdong, China,1 is warned by her parents to stay away from the polluted rivers in which her family once played, their shores now covered with electronic debris. Her parents work diligently at the local electronics dismantling shop – disassembling televisions, computers, fax machines, cell phones, and other electronic equipment – exposing themselves to high levels of known carcinogens while contributing to the destruction of their local ecology, yet willing to endure both for some degree of 1 The region of Guiyu, in the southern province of Guangdong, China, is located approximately 150 miles northeast of Hong Kong. A Google search of the town and province (“Guangdong Guiyu”), without any reference to electronic waste, found 39 of the top 40 results pertain to electronic waste recycling, demonstrating the significant local area impact of the industry. Guiyu serves as a model for other regions in China impacted by the electronic waste industry. Google Search, Guangdong Guiyu (Feb. 22, 2007), available at http://www.google.com/search?hl=en&q=Guangdong+Guiyu+& btnG=Search. 2 financial health.2 Meanwhile, the girl’s American counterpart splashes in the waters of a beautiful coastline, watching large cargo ships drift off harmlessly into the distance. Like most Americans, she is unaware these ships carry electronic waste;3 unwanted on domestic soil, yet coveted by developing countries working to transform our waste into their products. In 2005 and 2006, the United States Environmental Protection Agency (EPA) adopted rules designed to facilitate proper domestic management of electronic waste (eWaste)4 and to protect developing countries from environmental damages caused by the mismanagement of eWaste materials generated in the United States and disposed of abroad.5 Despite this, factions within the domestic and foreign waste management industry continue to abuse still valid exceptions to U.S. standards governing eWaste handling and exportation. Certain types of electronic waste6 are granted specified exceptions to 2 “It's [the electronic waste recycling industry] dangerous, yes, but no money is more dangerous,” said an 18-year-old woman who came to Guiyu from a neighboring province for work. “No money means you'll die of hunger.” Peter S. Goodman, China Serves As Dump Site For Computers: Unsafe Recycling Practice Grows Despite Import Ban, Washington Post Foreign Service, p. A01 (Feb. 24, 2003). 3 Traveling alongside legitimate high-tech exports are huge containers that may hold as many as 1,000 used computers destined for unauthorized disposal. Elizabeth Grossman, Secret After-Life of Computers, NORTH SUBURBAN LIBRARY SYSTEM (Apr. 10, 2006), available at http://www.salon.com/news/ feature/2006/04/10/ewaste/print.html. 4 U.S. Envtl. Prot. Agency, Hazardous Waste Management System; Modification of the Hazardous Waste Program; Cathode Ray Tubes, 71 Fed. Reg. 145, 42927-42949 (Jul. 28, 2006) (to be codified at 40 C.F.R. pts. 9, 260, 261, and 271); and, U.S. Envtl. Prot. Agency, Hazardous Waste Management System; Modification of the Hazardous Waste Program; Mercury Containing Equipment, 70 Fed. Reg. 150, 45507-45522 (Aug. 5, 2005) (to be codified at 40 C.F.R. pts. 260, 261, 264, 265, 268, 270, and 273). 5 In promulgating strengthened rules and regulations for transboundary eWaste export, EPA concluded, “The comments, and data submitted by the commenters, have convinced us that unfettered export of CRTs for recycling could lead to environmental harm.” U.S. Envtl. Prot. Agency, Hazardous Waste Management System; Modification of the Hazardous Waste Program; Cathode Ray Tubes, 71 Fed. Reg. 145, 42927-42949, p. 42938 (July 28, 2006) (to be codified at 40 C.F.R. pts. 9, 260, 261, and 271). 6 Electronic waste materials excluded from some Resource Conservation and Recovery Act (RCRA) requirements include cathode-ray tubes (CRT) found in computer and television 3 federal hazardous waste regulations in order to facilitate legitimate recycling and encourage reuse – partly de-regulating them – allowing industrious eWaste ‘recyclers’ tremendous opportunity to take advantage of an insatiable global market for electronic materials unwanted in the United States.7 Such demand has allowed the raw material value of electronic waste as a commodity to eclipse the environmental and epidemiological costs attached to the mishandling of its toxic components on foreign soil. Most distressing to international human rights advocates and concerned Non-Government Organizations (NGOs);8 the environmental and occupational health rules that control eWaste disposal domestically are absent once these materials exit United States jurisdiction, leaving regulation to receiving countries often lacking adequate administrative structure and sanctioning powers. China – due to its desire for raw production materials,9 low employment wages,10 administrative and customs corruption,11 and deficient capacity on the monitors, and mercury-containing equipment (MCE) found in thermostats and circuit boards. CRT and MCE are excepted due to their mass volume of generation and subsequent EPA goal to facilitate recycling of these materials. U.S. Envtl. Prot. Agency, Final Rules on Cathode Ray Tubes and Discarded Mercury-Containing Equipment (2006), available at http://www.epa.gov/epaoswer/ hazwaste/recycle/electron/crt.htm; and, See 40 C.F.R. §§§ 261.39, .40, and .41 (2005) and 40 C.F.R. § 273 (2005). 7 The prolific international market for “second hand” products from developed to undeveloped countries, notably used computers from the United States to China, is valued in the billions of dollars. DAVID HUNTER, JAMES SALZMAN, & DURWOOD ZAELKE, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY, p. 947 (2007). 8 For example, the Basel Action Network (BAN), founded in 1997 by longtime toxics activist Jim Puckett, is dedicated to monitoring transboundary eWaste activity and campaigning against its illegal exportation. Sasha Archibald, Leftovers / Not In Our Backyard: An Interview With Jim Puckett, CABINET MAGAZINE, ISSUE 16 (WINTER 2004/05); and, Terence Chea, Associated Press, American Electronic Waste Contaminates China and India (Aug. 17, 2005), available at http://www.minesandcommuni ties.org/Action/press708.htm. 9 Ma Hongchang, Senior Expert, Officer, Department of Pollution Control State Environmental Protection Administration (SEPA), Beijing, Basel Convention and Implementation in China (Nov. 6, 1999), available at http://72.14.253.104/search?q=cache:ta ZwpMRiFcJ:www.bcrc.cn/downlo ad/meetings/reg1999bj2/ch04.pdf+basel+convention+and+china&hl=en&ct=clnk&cd=8&gl=us. 10 Archibald, supra. 4 part of the government to centralize its rule12 – has established itself as a willing and able receiver of eWaste generated in North America,13 despite Chinese national