The U.S. public and policy makers have clearly recognized the threats to our oceans from ever-increasing amounts of plastic debris. The United States is the largest producer of plastic waste in the world, and by some estimates is directly or indirectly responsible for discharging several million tons of plastic debris into the environment every year. Kara L. Law et al., The United States’ Contribution of Plastic Waste to Land and Ocean, 6 Sci. Advances 44 (2020) (estimating 1.13–2.24 million metric tons in 2016). The low level of plastic recycling in the United States, which EPA estimates at less than 9% (other estimates are even lower), hinders federal and state efforts to reduce our contribution to this problem.
Congress has taken several modest steps to address the need to curb plastic debris impacting the oceans and to increase recycling on a national level. In the last days of the Trump administration, Congress enacted the Save Our Seas Act 2.0, 33 U.S.C. §§ 4201 et seq., to tackle the marine debris crisis by improving domestic programs for removing and preventing marine debris, encouraging international cooperation on plastic wastes, and improving U.S. waste management and recycling infrastructure.
Several years ago, the Break Free from Plastic Pollution Act of 2021, S. 984, 117th Cong. (2021), was introduced to establish a national strategy for reducing plastic debris. It was reintroduced in October 2023. S. 3127, 118th Cong. (2023). Among its many elements, the bill would incentivize substantial investment in domestic recycling infrastructure, create a nationwide beverage container refund program, and prohibit the export of plastic waste to most developing nations. The latter element—the plastic waste export ban—is especially critical because of the growing recognition that much of the United States’ culpability for the ocean plastics crisis is its export of plastics to countries that lack the infrastructure and enforcement to prevent millions of tons of discarded plastics from being discharged to the lands, rivers, and oceans. Some of these countries, most notably China, have taken aggressive steps to ban or curb the flow of plastic waste from the United States and other exporting countries. As a result, U.S. exports have declined dramatically since China’s 2018 ban on imports of almost all plastics.
Effective in 2021, the Plastic Waste Amendments to the Basel Convention limit the transboundary movement of most plastic wastes, even those from countries that are not party to the Convention, such as the United States. If successful, the United Nations’ negotiations of a global plastics treaty will further restrict exports of plastic waste.
Undoubtedly, the United States will likely lose most of its foreign markets for recycling plastics and must address the management of the ever-increasing plastic waste it generates. U.S. EPA’s April 2023 Draft National Strategy to Prevent Plastic Pollution identified important voluntary strategies for reducing the production of plastics, improving their management, and preventing and remediating plastic pollution to the environment. Similarly, EPA has set an overall National Recycling Goal of 50% by 2030—a goal that can only be met by significantly increasing the recycling rate for plastics. Many states and local municipalities have also taken measures to reduce the quantity of plastic being used, typically through plastic bag bans, extended producer responsibility laws, or restrictions on single-use plastics.
Despite these initiatives and policies, the United States is ill-prepared to manage its plastic waste unless it changes the structure of how its solid waste management systems regulate recyclable plastics. The current structure of the solid waste and recycling system in the United States relies on state and local regulation; however, there are legal and practical impediments as to how far state and local governments can go in regulating recyclable plastics. The problem is that the principal federal statute governing solid waste management—the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 et seq.—delegates responsibility for managing solid waste to the states, and the states may further cascade this authority to local governments. Yet state and local governments have inconsistent approaches to recycling and lack sufficient authority to control how recyclable plastics are managed once they enter into the stream of domestic and international commerce.
To see how this problem arises, one must first understand how recyclable plastics are managed in most of the United States. Residents and businesses discard their bottles, jugs, containers, and other plastic items, typically collected by private or municipal solid waste collectors. What materials are collected vary widely among cities and states and depend on how well residents and businesses understand each program. Typically, most plastic wastes are mixed with other recyclables, such as metals, paper, cardboard, and glass. These commingled recyclable wastes are taken to a material recovery facility (MRF) for sorting, removal of nonrecyclable wastes, and baling. Once plastic recyclables are sorted and baled, they are marketed, sold, and shipped to domestic or foreign processors for further cleaning, sorting, shredding, and reprocessing into plastic feedstocks for sale to product manufacturers. The collection, sorting, and processing of plastic waste is expensive, often more than the value of the materials produced and more than the cost of plastic made from virgin or unrecycled feedstocks.
A critical point in this process is the shipment of baled recyclables from an MRF. It is at this point that most plastic recyclables that had been discarded are no longer considered to be “wastes” (subject to regulation under federal, state, and local waste laws) because they have become commodities with economic value that will be sold, shipped, and processed into other plastic feedstocks or goods. State and local authorities have scant authority to regulate what happens next to these plastics. Where they go and how they are recycled or used will depend on the resin types and quality of the materials, how contaminated they are, whether there are viable markets for the materials, transportation costs, and market prices for the materials.
If the United States is to manage an increasing glut of plastic waste and meet its recycling goals nationally, it will need to address the structural problems inherent in a solid waste and recycling system that relies on how each state regulates plastic wastes and the limited authority those states have for managing plastics that move across state lines. Undoubtedly, there are numerous other challenges to be addressed, but this article summarizes the following three: (1) uncertainty as to whether and when states can regulate recyclable plastics as solid wastes under their solid waste laws, (2) confusion in identifying recyclable plastics and inconsistency in state recycling policies, and (3) limited authority for state and municipalities to control where and how recyclable plastics must be managed.
RCRA—typically viewed as the source of solid waste regulatory authority—regulates “solid wastes” but not recyclable plastics once they have value and are no longer wastes. The essential criteria for defining “solid waste” under RCRA and comparable state laws are that the materials must be discarded, meaning disposed of or abandoned. RCRA defines solid wastes, in part, as “any garbage, refuse, . . . and other discarded material. . . .” 42 U.S.C. § 6903(27) (emphasis added). As RCRA does not define “discarded,” what is “discarded” has been a contentious and heavily litigated question for decades. Are the materials abandoned and devoid of value, or might they still be of value for their intended uses or as feedstocks for other products?
Determining whether a material is a solid waste is the threshold question for RCRA to apply, whether for hazardous or nonhazardous wastes. For example, in Charleston Waterkeeper v. Frontier Logistics, LP, 488 F. Supp. 3d 240 (D.S.C. 2020), the seller of plastic pellets or “nurdles” argued that RCRA did not apply to spills of nurdles to nearby waters because they were products, not solid wastes subject to regulation. The court rejected the argument by finding that the discharged nurdles had been abandoned, no longer served any beneficial purpose, and were therefore solid wastes under RCRA. While this case was relatively straightforward, many others are not, where subjective intent to discard is harder to discern. One court noted, “[T]he concept of waste is subjective. For example, a commonplace item such as a disposable plastic spoon might have little value to many people but a great deal of value to someone who has no spoons.” Green Sols. Recycling, LLC v. Reno Disposal Co., Inc., 359 F. Supp. 3d 960, 970 (D. Nev. 2019), aff’d, 814 F. App’x 218 (9th Cir. 2020).
As a counterexample, in Premier Associates, Inc. v. EXL Polymers, Inc., 507 F. App’x 831 (11th Cir. 2013), the Eleventh Circuit interpreted Georgia’s definition of solid waste and concluded that carpet scrap or “selvedge” was not a solid waste under RCRA even though it was sent to a recycling facility but then landfilled. It reasoned that, because the generator of the materials assumed that the selvedge would be recycled, it was a “recovered” material with a “known use, reuse, or recycling potential,” which state law excluded from the solid waste definition.
This determination has significance well beyond RCRA. State and local governments define “solid waste” as part of their solid waste and recycling management programs. Most define “solid waste” using the “discarded” concept from RCRA. States and municipalities typically regulate the collection of solid wastes, including recyclables that fit the definition of solid waste, through licenses, franchise agreements, and contracts. But they usually exclude recyclables that have some value and resemble property, not waste. Claiming materials are not wastes but instead are “recyclables” has allowed circumvention of state and local solid waste regulation for decades. For example, in Waste Management of the Desert v. Palm Springs Recycling Center, 7 Cal. 4th 478 (1994), a recycling company argued that, notwithstanding an exclusive solid waste collection franchise held by another company, it could collect recyclable materials from commercial customers because they had not been discarded, but instead were being sold for value. The court agreed, noting that selling a recyclable material is distinct from discarding a recyclable waste. The city could regulate the collection of the latter, but not the former. In contrast, Lopez v. City of Kerman, 2010 WL 3715641 (E.D. Cal. 2010), held that where a collector was paid to collect discarded recyclables, they were solid wastes under the city collection agreement.
Similar debates have arisen where states sought to regulate the transportation of recyclables without running afoul of preemption under federal laws regulating the transportation of property, such as the Federal Aviation Administration Authorization Act, 49 U.S.C. § 14501 et seq., which preempts state regulation of motor carriers transporting property. Several courts had to determine whether mixed recyclable and nonrecyclable loads were “property” whose transportation would be preempted. In one case, AGG Enterprises v. Washington County, 281 F.3d 1324 (9th Cir. 2002), the Ninth Circuit rejected the preemption argument and held that even a 90% load of recyclables is still solid waste and not property. While other courts agreed, the Ninth Circuit expressly declined to decide whether hauling an even lower percentage of contaminated recyclables sorted by the generator would be preempted. What is notable about these and many similar cases is the uncertainty that remains in how to draw the lines between solid wastes and property and between what states and local governments can and cannot regulate.
Another problem is that there is no consistent or clear understanding of what plastics are “recyclable.” For decades, consumers have been confused by the “chasing arrows” logos imprinted on their water bottles and yogurt tubs. Do the chasing arrows mean the bottle is made from recycled plastics or that it can be recycled? Is a shampoo bottle recyclable only if it has the chasing arrows logo? Or must the logo also include a “resin identification code” or RIC? Are only RIC codes #1 and #2 recyclable? Is a mayonnaise bottle recyclable as is, or must the plastic label and cap be removed first? Some products are made from otherwise-recyclable plastic but cannot be recycled because of their sizes, shapes, or presence of nonrecyclable plastics or other contaminants, such as food. MRFs cannot manage plastic pieces that are too small for their equipment, nor can they accept other plastic items that are wholly incompatible with their machinery—e.g., plastic film and bags or the thousands of bowling balls Waste Management, Inc., reports receiving annually. Waste Mgmt., Inc., 2020 Sustainability Report (2020).
The litigation and class action settlement Smith v. Keurig Green Mountain, Inc., 18-CV-06690-HSG (N.D. Cal.), over the recyclability claims for Keurig K-Cups, which we recognize as those individual plastic pods sealed with foil and filled with coffee, highlighted the confusion over whether plastic waste is theoretically recyclable versus whether it can actually be sorted and recycled in most MRFs. Although K-Cups were made of recyclable polypropylene (#5) plastic, they were too small for most modern MRFs and would create a risk of contamination for other recyclables. The parties settled the case, with Keurig agreeing to revise its labeling to “Check Locally—Not Recycled in Many Communities.”
Federal labeling requirements and concerns over greenwashing have further contributed to consumer confusion over recyclability claims. The Federal Trade Commission’s (FTC) Green Guides states that recyclability claims should be qualified if recycling facilities are not available to at least 60% of the consumers or communities where a product is sold. EPA has recently taken the positive step of asking the FTC to retire the chasing arrows label because it can be deceptive and misleading. How often have you stood in front of a recycling container wondering whether your plastic bag containing the remnants for your lunch—including juice bottles, plastic forks, plastic wraps, and water bottles—goes in the trash or recycling?
Even if the confusion over recyclability is resolved federally, the states will still have a patchwork of different requirements and programs determining what plastics should be recycled, whether viable markets exist for recyclable plastics, what standards the sorted recyclables must meet, how or whether government has a role in regulating them, and who bears the cost for these programs. One municipality might require residents to recycle plastic clamshells or Styrofoam™ containers, whereas another might not. A receiving MRF might have equipment to sort for only some, but not all, recyclables included in municipal recycling programs. Some states are adopting “extended producer responsibility” (EPR) programs to require producers to be responsible for recycling their products and packaging. Some cities may ban plastic bags, yet some states prohibit their cities from instituting such bans. And there are many inconsistent approaches to recycling technology. Some states consider burning waste for energy generation or converting plastics to diesel or other fuels to be recycling, while others (including EPA) do not. Given today’s political polarization between red and blue states and within Congress, harmonization of state recycling policies seems unlikely.
A potentially even greater impediment to a comprehensive recycling system is the constitutional limits placed on state regulation of plastic wastes and recyclables once they enter the stream of commerce. States can easily run afoul of the Commerce Clause of the U.S. Constitution, U.S. Const. art. 1, § 8, cl. 3, and other federal laws if they dictate by law where post-MRF recyclable plastics must be sent and who will recycle, reprocess, or even dispose of them. As the U.S. Supreme Court recognized in Philadelphia v. New Jersey, 437 U.S. 617 (1978), the interstate movement of even valueless wastes falls within the Commerce Clause’s ambit. Courts have routinely struck down state laws that discriminate against interstate commerce in transporting solid waste—referred to as “flow control”—to prevent economic protectionism. In C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383 (1994), the U.S. Supreme Court struck down a local ordinance that required all solid waste generated in the town of Clarkstown, New York, to be processed at a designated, privately owned transfer station. Drawing on a line of its decisions striking down local processing requirements, the Court held that the ordinance impermissibly discriminated against interstate commerce in violation of the Commerce Clause. While the Court’s subsequent decision in United Haulers Association v. Oneida-Herkimer, 550 U.S. 330 (2007), upheld a similar ordinance directing waste to a public facility, that decision is of little value to a municipality or state that relies on private facilities to recycle their plastic wastes.
There is another Commerce Clause problem. If recyclable plastics are shipped out of state, the originating state has virtually no authority to dictate how the materials will be managed. Even if the originating state requires the recycling of its plastics, it cannot prevent the landfilling or incineration of plastic wastes that are shipped elsewhere. Any attempt by one state to impose its laws on commerce occurring wholly outside its boundaries would likely run afoul of the “extraterritoriality doctrine” under the dormant Commerce Clause. Unlike other dormant Commerce Clause principles, this doctrine does not require a showing that a state law discriminates against interstate commerce; rather, it seeks to prevent economic Balkanization by prohibiting states from extending the reach of their laws to activities wholly occurring in other states. For example, in Daniels Sharpsmart, Inc. v. Smith, 889 F.3d 608 (9th Cir. 2018), a California law required that medical waste shipped out of state must be incinerated. California penalized a waste handler that transported medical wastes to Kentucky and Indiana, where treatment methods other than incineration were allowed. Relying on the U.S. Supreme Court’s decision in Healy v. Beer Institute, 491 U.S. 324 (1989), the district court and the Ninth Circuit easily concluded that the law unconstitutionally regulated commerce occurring outside of California by “attack[ing] the cement that holds this nation together.” The decision was consistent with the U.S. Supreme Court’s admonition in Carbone: “States and localities may not attach restrictions to exports or imports in order to control commerce in other States.” 511 U.S. at 393.
The extraterritoriality doctrine will pose a significant obstacle to increasing the nation’s plastic recycling rate if the states—and their patchwork of varied recycling programs and priorities—continue to bear primary responsibility for solid waste management. If, for example, an environmentally progressive state wanted to force the development of infrastructure for recycling plastics having little or no value, it might enact laws to require recycling and prohibit landfilling or incineration of all such plastic wastes. If plastics must be recycled, then there would presumably be a demand for new recycling facilities, or so one would think. The law, however, would be of little value if companies collecting plastic waste chose instead to export them to a state where disposal costs are lower than the net costs to recycle and sell the plastics. Similarly, a state might adopt EPA’s Draft Strategy policy to exclude plastics-to-fuel conversion processes from its allowable recycling practices. Yet, the state would lack the authority to prevent the export of plastics to another state that allowed this practice. As a practical matter, this means that a local government can set up a robust recycling program with lofty recycling goals, extensive education, and subsidized infrastructure, but the program may never achieve its goals if the state cannot control where they are sent and whether or how they are recycled.
If states and local municipalities are expected to remain responsible for managing plastic waste as part of a national plastic reduction and recycling strategy, they will need consistent and practical federal standards defining what plastic wastes are recyclable, what wastes must be recycled, what the recycling targets are, and how states should measure their recycling rates, especially for plastics exported out-of-state. To overcome the Commerce Clause barriers to interstate movement of recyclables, Congress would need to give states greater authority to control the flow of recyclable plastics, including the authority to regulate where and how they are recycled.
Concurrent with these legislative changes, federal and state governments must incentivize or invest heavily in the development of a robust domestic recycling system to ensure the necessary capacity to manage the increasing amounts of plastics being produced and those plastics that can no longer be exported overseas. The United States should commit to steep reductions in the export of plastics to markets that cannot responsibly handle them, whether by adopting the requirements of the Plastic Waste Amendments to the Basel Convention, by enacting the “Break Free from Plastics Pollution Act” to ban exports of plastic wastes, or by seeking steep reductions on exports in the United Nations’ negotiation of a global plastic waste treaty.
