Earth, we have a problem! We use too much material and dispose of too much waste, a situation that is not sustainable. Unfortunately, materials conservation has garnered very little policy attention in the United States. Although waste management has been a more frequent subject of public policy debate, only recently has the vast quantity of plastic waste generated each year become a significant public concern, largely due to growing press coverage of ocean pollution and microplastics.
In 2017 every person in the United States used on average over 18 tons of materials (i.e., extracted or harvested materials including fuels), more than 42% higher than in the European Union. Ctr. for Sustainable Sys., Univ. of Mich., U.S. Material Use Factsheet (2021). The United States leads the world in materials consumption. And in 2018 the country generated more than 290 million tons of solid waste. Statista, U.S. Municipal Solid Waste Generation from 1960 to 2018 (Mar 30, 2022). The extraction, harvesting, and use of materials have contributed to several critical environmental problems including loss of habitat; air, water, and land pollution; and the release of greenhouse gases, among others. Disposal of these materials can also result in release of greenhouse gases; discharge of pollutants, including heavy metals through incineration; and emerging issues such as the much-publicized problem of waste plastics in oceans, illegal shipments of waste materials to countries in Asia and Africa, and the widespread distribution of microplastics. Managing this waste has become an increasing burden on local governments. The cost of waste management is significant. Revenues from recycling have been volatile and have for several years been money losers. Daniel Luzar, Why Recycling Doesn’t Make Money Anymore, Governing (June 24, 2015). For example, local governments in New York outside of New York City spent over $900 million on solid waste management in 2017. N.Y. State Comptroller, Local Governments and the Municipal Solid Waste Landfill Business (2018). Identifying recycling markets has become difficult, especially after China effectively banned imports of recyclable wastes with its 2018 National Sword policy that reduced importation of waste materials by 99%. Cheryl Katz, Piling Up: How China’s Ban on Importing Waste Has Stalled Global Recycling, Yale Env’t 360 (Mar. 2, 2019). In addition, many types of packaging and plastics waste simply cannot be recycled at all, or recycled effectively. Finally, some aspects of municipal waste such as rapidly growing disposal of electronics wastes over the last two decades have complicated the waste management picture because of the toxic substances embedded in these products.
North Americans generate about 20 kg of electronic waste each year, but only 15% of that waste was documented as recycled in 2019. World Econ. F., Platform for Accelerating the Circular Economy: A New Circular Vision for Electronics 14 (Jan. 2019). Waste disposal is also a critical environmental justice issue because a disproportionate number of waste disposal facilities have been historically located in low-income communities and communities of color. These developments are driving the rethinking of the more than 100-year-long assignment of responsibility for solid waste management to local governments.
The United Nations has observed that “achieving economic growth and sustainable development requires that we urgently reduce our ecological footprint by changing the way we produce and consume goods.” UNDP Seoul Policy Centre for Knowledge Exchange through SDG P’ships, Goal 12: Responsible Consumption and Production. Similarly, the U.S. Environmental Protection Agency (EPA) has noted:
Climate change, energy policy, and the economy all create headlines, but the stories that follow often miss the point that all these issues are, in part, symptoms of how we use materials. It is becoming increasingly clear that how we use materials is a large factor in energy use, climate change and the economy, and an important issue in its own right. Therefore, if we want to address the issues behind the headlines, and if we want the U.S. to be competitive in the world economy, sustainable use of materials must be our goal.
U.S. Env’t Prot. Agency, Sustainable Materials Management: The Road Ahead 1 (June 2009). Progress in achieving the goals of SDG 12 will certainly require attention to how wastes are managed, but more importantly will require careful attention to how products are designed to avoid generating waste.
Attention to materials conservation is not new, but policy initiatives to achieve conservation have been slow to emerge. In the early 1990s, Friedrich Schmidt-Bleek from the Wuppertal Institute for Climate, Environment and Energy in Germany proposed that materials usage must be reduced by a factor of 10 to achieve long-term sustainability. Factor 10, Sustainability Concepts, https://bit.ly/3xQHWQ7. In 2002 Professor Michael Braungart and William McDonough proposed a cradle-to-cradle design approach. In their 2002 book Cradle to Cradle: Remaking the Way We Make Things, they proposed an approach to the economy that eliminates waste, asserting:
Everything is a resource for something else. In nature, the “waste” of one system becomes food for another. Everything can be designed to be disassembled and safely returned to the soil as biological nutrients, or re-utilized as high quality materials for new products as technical nutrients without contamination.
More recently, the idea of a circular economy, a variation on the cradle-to-cradle theme, emerged, with the Ellen MacArthur Foundation and the World Resources Institute being two of the principal advocates for the idea. According to the Ellen MacArthur Foundation and its website’s Circular Economy Introduction and Overview, “a circular economy is based on the principles of designing out waste and pollution, keeping products and materials in use, and regenerating natural systems.” The circular economy concept has gained significant momentum in both the government and the business sector. The EU Circular Economy Plan anticipates new legislation that will widen the Ecodesign Directive beyond energy-related products so as to make the Ecodesign framework applicable to the broadest possible range of products and make it focus on circularity. Several businesses have adopted circular economy approaches. A joint report developed by the UN Global Compact and the World Business Council for Sustainable Development (WBCSD) noted, “[i]t is in the interest of business to find new solutions that enable sustainable consumption and production patterns.” SDG Compass, The Guide for Business Action on the SDGs, https://sdgcompass.org.
The critical question for the United States and other high-consuming countries is how to effectively address the twin problems of materials usage and waste generation to help achieve a more circular economy. The federal government has focused little on materials usage, at least from a regulatory perspective. Pursuant to the Pollution Prevention Act, 42 U.S.C. §§ 13101 et seq., EPA provides information and financial support to states to support pollution prevention programs, but this work has not dramatically changed the materials use or waste generation picture. Other EPA voluntary programs such as Design for the Environment (now Safer Choice) have made useful contributions but have not driven fundamental changes in product design needed to deal with the materials use and waste generation issues. EPA also has supported solid waste planning by state governments, but the EPA’s principal focus under the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., has been on proper hazardous waste management. While state and local recycling programs have made important contributions to diverting wastes from landfills and incinerators, recycling programs have not by themselves been able to stem the growing tide of waste materials, and the programs are facing increasing issues with cost and markets.
Solving the materials conservation and waste management issue will require new thinking about ways to drive behavior change in how products are produced and their end-of-life fate. The traditional answer has been that materials usage is an issue for product manufacturers themselves, driven by market considerations. Waste management has been and remains the responsibility of local governments, a situation that has changed little since the late nineteenth century when public health concerns led to local governments assuming a central role in sanitation. Bill Sheehan & Helen Speigelman, Extended Producer Responsibility in the United States and Canada, in Governance of Integrated Product Policy: In Search of Sustainable Production and Consumption 202 (Dirk Scheer & Frieder Rubik, eds. 2005). These are not the only possibilities. The EU has for more than two decades assigned some of the responsibility for end-of-life product management to producers, and in doing so provided a strong incentive for manufacturers to design products in a way that minimizes materials use and facilitates repurposing and more effective recycling of the products. It also lessens the burden on local governments. This approach is referred to as “extended producer responsibility” or EPR.
Thomas Lindhqvist is often credited with coining the term EPR in his 1990 report to the Swedish government. Thomas Lindhqvist, Modeller för förlängt producentansvar [Models for Extended Producer Responsibility], in Ministry of the Environment, Från vaggan till graven—sex studier av varors miljöpåverkan [From the Cradle to the Grave—Six Studies of the Environmental Impact of Products (1990). He defined EPR as:
An environmental protection strategy to reach an environmental objective of a decreased total environmental impact from a product, by making the manufacturer of the product responsible for the entire life-cycle of the product and especially for the take-back recycling and final disposal of the product.
The Organization of Economic Co-operation and Development defines EPR as “a policy approach under which producers are given a significant responsibility—financial and/or physical—for the treatment or disposal of post-consumer products.” Extended Producer Responsibility, OECD, https://bit.ly/3mYWjLL.
The EU quickly adopted EPR as a tool for driving change in product design and waste management. Germany enacted the first countrywide law, the German Packaging Ordinance of 1991, to put the “producer pays” concept into practice, focusing on packaging. Its goal was reducing landfill volume and shifting responsibilities for packaging recovery. Manufacturers under the Duales System Deutschland GmbH (Dual System of Germany), a nonprofit organization, were required to set up a system for collecting, sorting, and recycling packaging after consumer use.
In its 1994 Packaging Directive, the EU sought to reduce packaging waste and encourage recycling by requiring member states to set up packaging waste collection and recycling programs, with most member states doing this through EPR programs. These programs have been credited with significantly increasing the recycling rate for packaging and paper waste. Prod. Stewardship Inst., Extended Producer Responsibility for Packaging and Paper Products: Policies, Practices and Performance (Sept. 2020). In 2000, the EU adopted the End-of-Life Vehicle Directive requiring manufacturers to cover most of the cost of recovering and recycling vehicle parts. The Directive has contributed to a vehicle reuse and recycling rate of almost 90% in the EU in 2019. Eurostat, End-of-Life Vehicle Statistics (2021).
In 2012 the EU addressed the waste electronics issue with the Waste Electrical and Electronic Equipment Directive (WEEE). WEEE applies to a broad range of electronic products, mandating collection and reuse or recycling where possible and separation and containment of hazardous wastes. In 2019, 18 member states collected 45% of the weight of electronics equipment sold, meeting the WEEE goal, and three states collected at a rate of 65%, meeting the longer-term WEEE goal. Eurostat, Waste Statistics—Electrical and Electronic Equipment. More recently, the EU has adopted a Circular Economy Action Plan, building on its Ecodesign Directive, that sets out programs to transition from a one-way take, make, and dispose economic system to one that seeks to minimize resource consumption and keep products in use as long as possible before returning the materials to be used in future products. Several aspects of the EU Circular Economy plan rely on EPR. EPR is now fully embedded in EU public policy. While some issues remain about the design and effectiveness of EPR programs in the EU, including the fate of some of the collected materials, the programs have made substantial contributions both to materials conservation and to improved waste management.
The United States has been much slower in adopting EPR legislation. In the early 1990s, the Natural Resources Defense Council worked with members of Congress on a National Recycling Act that would have required manufacturers to develop end markets for waste materials, a variation on the EPR theme. This legislative initiative failed as industry opposition to EPR grew. In the mid-1990s, President Clinton’s Council on Sustainable Development considered EPR as a way of addressing resource conservation and waste management. A 1996 workshop sponsored by the Council and EPA endorsed EPR but expressed a preference for voluntary actions. However, industry opposition to extended producer responsibility resulted in a final President’s Council on Sustainable Development recommendation that referred to extended “product” responsibility rather than “producer” responsibility. This word change was important since “product” responsibility meant that everyone in a product life cycle shared responsibility for the fate of products. This diffuse responsibility approach did not result in the kind of fundamental changes in materials use and waste management that are needed, and no federal legislation resulted from the recommendation. Meanwhile, the waste piles grew.
In the absence of federal leadership, states began considering EPR legislation, starting with early efforts in the 1990s when Minnesota and a few other states adopted legislation requiring producers to take back lithium-ion batteries. In 2001, Maine became the first state to mandate that automobile manufacturers pay a bounty to salvage yards for recovering mercury switches. Three years later Maine enacted the first EPR law for computer monitors and TVs. Me. Rev. Stat. Ann. tit. 38, § 1610. Electronics EPR take-back laws have since been enacted by 24 states, most of which were passed between 2007 and 2010. These laws typically include computers, monitors, and TVs, but some states such as Illinois, Minnesota, and New York include a much wider range of electronics products such as cell phones, printers, DVD systems, and VCRs. Minnesota, Washington, and Oregon have led the states in collection rates, which has been attributed to providing convenient collection points and clear collection goals. Elec. TakeBack Coal., Ten Lessons Learned from State E-Waste Laws (May 10, 2011), https://bit.ly/3O05zLB.
EPR legislation remained relatively dormant in the 2010s but reemerged in 2021 to address the increasingly prominent problem of packaging and plastics waste. Unlike aluminum cans and waste that contains inherently valuable elements and other easily recovered material, mixed plastic waste with its widely varying chemical structures and about 10,000 different types of additives has historically not been recognized as inherently valuable, and plastic products are far cheaper to produce from virgin plastic than recycled plastic. Packaging materials and containers make up about 28% of municipal solid waste, approximately 82 million tons per year. Jessica Hedges & Kate O’Neill, Packaging Generates a Lot of Waste, Now Maine and Oregon Want Manufacturers to Foot the Bill for Getting Rid of It, The Conversation (Sept. 8, 2021). In Congress, Representative Alan Lowenthal in 2020 introduced the Break Free from Plastic Pollution Act of 2020, which would make producers of packaging paper, single-use products, beverage containers, and food service products responsible for collecting, managing, and recycling or composting the products after consumer use. H.R. 5845, 116th Cong. (2020). The legislation has not progressed in Congress.
However, the states have begun addressing the plastics and packaging waste issue. Again, Maine led the way in June 2021 with L.D. 1541, An Act to Support and Improve Municipal Recycling Programs and Save Taxpayer Money. This legislation imposes a variable fee on packaging waste and containers based on their recyclability and toxic content to encourage manufacturers to choose more easily recyclable options. The fee is paid to a stewardship fund, from which municipalities can seek reimbursement based on the average cost of managing packaging waste, providing an incentive for municipalities to maintain effective recycling systems. Oregon followed in August 2021 with the passage of the Plastic Pollution and Recycling Management Act, which requires “brand owners” selling packaging, paper products, and food service wares in the state to join stewardship organizations and pay fees to support recycling programs. S.B. 582, 2021 Reg. Sess. (Ore. 2021).
The recent emergence of the packaging EPR legislation may indicate new momentum for EPR programs. One publication has observed “Implementing EPR for packaging is a top recycling policy strategy in 2022.” Megan Quinn, EPR Remains Top Item in State Recycling Policy Debate, but Bottle Bills and Plastic Bans Also in Play, Waste Dive (Feb. 9, 2022). EPR legislation for plastics or packaging has been introduced in 10 additional states in response to increasing public concerns about single-use plastics and the increasing difficulty and cost associated with managing plastic wastes.
Concerns about the proliferation of plastics waste may be driving a breakthrough in the historical opposition of at least some industrial sectors to EPR. The U.S. Plastics Pact led by the World Wildlife Fund as part of the Ellen MacArthur Foundation’s Plastics Economy Initiative includes industry, NGO, government agency, and university members. The Pact’s goal is for 100% of plastic packaging to be reusable, recyclable, or compostable by 2025. To achieve this goal, the Pact “supports EPR policy funded by all packaging types, to support community and material recovery processing facilities,” noting “[t]he EPR framework will incentivize reuse, recyclability, and design for lower environmental impact through eco-modulation and offers flexibility for deposit return systems (DRS) to meet beverage packaging recycling rates.” U.S. Plastics Pact, The U.S. Plastics Pact Roadmap to 2025.
Additional momentum for EPR may come from the March 2, 2022, UN Environment Assembly “Resolution to End Plastic Waste.” The Resolution and the upcoming treaty negotiations may stimulate additional national legislation adopting EPR for plastics, building on the packaging and plastics laws in the EU and emerging in the United States.
The voices calling for materials conservation and a better approach to waste management are finally becoming more prominent. Sustainable Development Goal 12 targets call for achieving the sustainable and efficient use of natural resources and substantially reducing waste generation through prevention, reduction, recycling, and reuse by 2030. Circular economy is a key part of the EU’s green agenda and has drawn strong support from the World Business Council for Sustainable Development, which noted that by mid-century:
Circular, closed-looped and networked designs that help people to live well and within one planet drive successful industry and reduce the need for primary resource extraction. Closed-loop systems make the concept of waste obsolete. They use waste as an input and resource, eliminating waste accumulation on land, in air or in water.
World Bus. Council for Sustainable Dev., Vision 2050: Time to Transform (Mar. 25, 2021), https://bit.ly/3xWhUeo.
The UN Environment Programme, in a 2018 report entitled “Redefining Value: The Manufacturing Revolution,” emphasizes value retention processes (VRPs) such as remanufacturing, repurposing, and other approaches that if followed “can enable faster achievement of circular economy,” observing that “VRPs enable the retention of the inherent value of the product, whereas recycling retains just the value of the material or resource that is recycled.”
Effective tools facilitating the circular economy are critical to achieving more sustainable production and consumption. EPR is one of the key tools. Design of EPR programs is a critical factor to success. EPR approaches should promote product design that reduces materials use and makes reuse or repurposing of products more feasible. Programs need to make collection of end-of-life products convenient, and the programs should have clear collection goals. These programs should also be designed in ways that do not displace effective existing recycling programs, especially those that operate on a smaller scale. EPR programs should require collected material to be repurposed or recycled to the maximum extent possible and should require reporting of the fate of collected products. The programs need careful government oversight to ensure goals are being met. As such, governments must also invest sufficient resources to enforce the laws.
EPR is, of course, only one tool that can help achieve materials conservation and address the growing problems with waste management. However, the evidence indicates that EPR can make significant contributions for several product categories. A national EPR law should at least be considered for waste electronics, plastics and packaging waste, and vehicles. National legislation could facilitate efficient collection systems and reach parts of the country that have not adopted EPR legislation. The experience with these product categories in the EU provides lessons learned about how best to design these programs. Any national program should involve collaboration with states that have enacted EPR legislation, especially given that several states have had EPR legislation in place for decades. Dialogue with affected industrial sectors should also be part of the development process, although care should also be taken to ensure that the effectiveness of EPR programs is not compromised. If Congress fails to act, and for possible new areas of EPR such as building materials, states should continue taking the lead in enacting legislation.
Finally, companies themselves should consider supporting EPR laws as they have begun to in the Plastics Pact, to facilitate materials conservation through better product design and as a means of improving end-of-initial-life product repurposing or reuse. In addition, EPR programs could assist publicly traded companies with their SEC reporting requirements in the future as the SEC expands reporting on environmental, social, and governance issues.
EPR will not, by itself, solve Earth’s materials usage and waste disposal problem, but it can make significant contributions to a more sustainable future.
