To create a sustainable future, the United States must focus on transitioning from a linear to a circular economy. The U.S. Environmental Protection Agency (EPA) is the best-positioned agency to lead this transition. This article argues for (1) an urgent transition to a circular economy, (2) how the EPA must be the leading agency to accelerate this transition, and (3) which legal authorities are most useful to take action now.
About 92 percent of global societies, including the United States, function and thrive on a linear economy, also referred to as the “take-make-waste” model. This model refers to the life cycle of products that do not incorporate systems of recycling or reuse but instead rely on a fallacy of infinite potential to extract and dispose of materials. As societies continue to rely on linear economies, our greenhouse gas (GHG) emissions are skyrocketing and consumption has become insatiable. The modern economy consumed 582 billion tons of materials between 2016 and 2021—nearly as many materials as the 740 billion tons consumed in the entire past century. Without intervention, this current system is leading to a likely increase in planetary warming of 1.5 degrees (Celsius) by 2030. With the perpetuation of linear economies, the planet will suffer environmental destruction, extreme biodiversity loss, and cataclysmic climate change.
However, an alternative exists. A circular economy works to bend industry back into harmony with nature. Industries can do this by reusing, recycling, repairing, or redesigning a product to maximize its value while continuously using the same material—leading to a circular economy. If the world could incorporate just 17 percent of circular economies into its current system, we would likely bring our GHG emissions to 1.5 degrees or below. Unfortunately, only about 7 percent of world economies are circular and studies indicate that this number is declining. If societies work to reduce emissions by shifting to a circular economy, some estimates predict that we would generate one trillion dollars annually in economic value, create more than one hundred thousand new jobs, and prevent one hundred million tons of waste within the next five years, while restoring natural capital and ecosystem services. To that end, a circular economy has the significant potential to avert climate change, biodiversity loss, and environmental destruction.
The comparison between a linear and circular economy urges that the United States should take action to transition to a circular economy. The EPA, as the best-positioned agency with authority and power to take immediate action, should focus on certifying those involved in renewable energy products and allocate a percentage of its procurement budget to businesses that hold a “Circularity Seal.”
Municipal solid waste generation is an increasing issue throughout the United States. The growing adoption of renewable energy products such as solar panels, wind turbines, and batteries creates an emerging opportunity to bring circularity into our existing system.
Around the globe, humans produce 70 percent more waste than the Earth can regenerate annually. In the United States, the total municipal solid waste (MSW) generation was 292.4 million tons or about five pounds per person per day, as per 2018 data. On the other hand, in 1960, the waste generation was about 88.1 million tons or about 2.6 pounds per person per day. Although the amount of waste in the United States has steadily increased since 1960, regulators’ efforts have helped us to recycle, resulting in a reduction of landfilling waste by 45 percent and an increase in recycling rates by 25 percent.
Despite some improvement in our waste reduction, we are faced with a new type of waste from renewable energy products, a challenge that the United States must quickly learn to manage. The United States began transitioning from fossil fuels to renewable energy sources to maintain sustainability. However, waste from renewable energy products such as solar panels, wind turbines, and lithium batteries, is expected to increase exponentially, potentially causing significant environmental damage, as 90 percent of solar panels end up in landfills due to the higher cost of recycling process.
Without circularity for these renewable sources, waste generation and GHG emissions could become astronomical. The International Renewable Energy Agency (IRENA) estimates that solar panels alone could generate 78 million tons of waste by 2050. However, if these materials are reintroduced into the economy, the value of the solar panel waste could exceed $15 billion. Some companies claim they can recover 95 percent of the material from end-of-life solar panels and reintroduce them into the supply chain. Circularity would also reduce concerns about unsafe waste and alleviate problems of harm to human health and the environment. In fact, the U.S. Agency for International Development predicts that adopting circular economies could add up to $4.5 trillion in economic output by 2030.
Ironically, designing renewable energy products to be recyclable is not enough to achieve circularity. For example, wind turbine blades, while technically completely recyclable, are incredibly difficult to recycle because they are composed of finely blended mixed materials that must be separated to be recycled. While some companies have developed circularity plans to ensure their blade fibers can be separated and reused to make new blades, others have passed on the problem to rogue businesses to recycle them. Unfortunately, at least one business exploited this issue, stealing millions of dollars to “recycle” wind turbine blades before declaring bankruptcy and leaving thousands of unrecycled blades abandoned on acres of land in a small community in Texas. Without a regulation scheme to certify the trustworthiness of circularity efforts, companies intending to do good are left to rely on trust and hope for the best.
While renewable energy products waste contributes only a fraction to the global solid waste streams, its share is rapidly growing. This growth provides a confined chance to begin installing circularity where a linear economy has failed to curtail the growing renewable energy products waste problem. As such, the United States must successfully regulate renewable energy products waste by ensuring stringent strategies for reuse, recycling, or repair through a circular economy to keep waste out of landfills and reduce the demand for materials needed for renewable energy products.
The EPA has the authority and power to regulate a circular economy under 1. Executive Order (EO) 14057, 2. the Federal Acquisition Regulation (FAR) subpart 23, and 3.the Resource and Conservation Recovery Act (RCRA) section 6002.
In 2021, President Biden signed EO 14057, which focused on producing a carbon-free power sector by 2030 and achieving net zero emissions by 2050. EO 14057 has placed a clear emphasis on sustainability, reuse, and recycling. For example, section 207 of EO 14057 states in part that,
Each agency shall minimize waste, including the generation of wastes requiring treatment and disposal; advance pollution prevention; support markets for recycled products; and promote a transition to a circular economy, as defined in section 2 of the Save Our Seas 2.0 Act (Public Law 116-224), by annually diverting from landfills at least 50 percent of non-hazardous solid waste, including food and compostable material, and construction and demolition waste and debris by fiscal year 2025; and 75 percent by fiscal year 2030.
The EO further requires agencies, particularly the EPA, to take action under section 208, which reads in part that,
Agencies shall reduce emissions, promote environmental stewardship, support resilient supply chains, drive innovation, and incentivize markets for sustainable products and services by prioritizing products that can be reused, refurbished, or recycled; maximizing environmental benefits and cost savings through use of full lifecycle cost methodologies; purchasing products that contain recycled content, are bio-based, or are energy and water efficient, in accordance with relevant statutory requirements; and, to the maximum extent practicable, purchasing sustainable products and services identified or recommended by the Environmental Protection Agency (EPA).
In addition, EO 14057 relies on the Save Our Seas (SOS) 2.0 Act as the only federal law to statutorily define a circular economy, stating,
[A circular economy] uses a systems-focused approach and involves industrial processes and economic activities that—(A) are restorative or regenerative by design; (B) enable resources used in such processes and activities to maintain their highest values for as long as possible; and (C) aim for the elimination of waste through the superior design of materials, products, and systems (including business models).
As noted, EO 14057 requires the EPA to identify and recommend sustainable products and services to begin reducing emissions, promote environmental stewardship, and maximize environmental benefits. All of which would be possible from incentivizing a transition to a circular economy.
Based on sections 208 and 209 of EO 14057 and the definition of a circular economy from the SOS 2.0 Act, the EPA is responsible for encouraging a circular economy in federal procurement by setting forth whether the process is “restrictive or regenerative by design” or enables resources to “maintain their highest value for as long as possible.” However, the ultimate decision of what qualifies as circular appears to be left to the discretion of the EPA. The EPA must promptly identify and recommend products and services as soon as possible.
The EPA established ENERGY STAR over 25 years ago, resulting in the program saving over one trillion kWh of energy, equivalent to an annual carbon sequestration of over 800 million acres of forest. If a Circularity Seal could see even a fraction of that success, it is undoubtedly worth the effort to begin implementing a new system. The federal government and consumers should be able to confidently identify and financially support businesses that have transitioned to a circular economy, and the EPA must ensure this reality.
Since EO 14057 requires the EPA to regulate companies to integrate methods of a circular economy, companies should be able to apply for an EPA certification ensuring that they have incorporated circular economy designs to their businesses and maintained transparency and certainty. Such information must be publicly available so that agencies can easily find it and the public may benefit from knowing which products and services have implemented a circular business model.
The EPA could establish a program similar to ENERGY STAR for certifying businesses as "circular" and awarding them a Circularity Seal. This program would recognize companies that have integrated circular practices into their business models, such as using circular supplies, recovering resources, extending product life, operating sharing platforms, and offering products as services. By leveraging the language of the SOS 2.0 Act and the Executive Orders, the EPA has various options for implementing the Circularity Seal.
The legal authority that requires the EPA to identify recycled materials for mandatory agency procurement, falls under FAR subpart 23 and the RCRA section 6002. While these two sections do not explicitly name circular economies, the authority provided allows the EPA to identify products in the renewable energy sector that could help “close the loop” in federal procurement.
FAR subpart 23 covers acquisition policies and procedures that aim to protect and improve the quality of the environment while also obligating contractors to comply with the statute to the same extent as an agency. The statutory purchasing programs mandate that all agency acquisitions exceeding $10,000 for products identified as “EPA-designated items” must consist of materials that have been recovered and are included in the EPA's procurement guidelines.
Section 6002 of RCRA requires EPA to designate products that are manufactured with recovered materials and to suggest protocols for procuring such items. The mandate for recycling and purchasing emphasizes the importance of acquiring products endorsed by the EPA. Section 6002(i), the practice of affirmative procurement, represents an agency's concerted effort to optimize its acquisition of items sanctioned by the EPA. Additionally, the affirmative procurement program is responsible for ensuring that the procured designated items contain the highest feasible amount of recovered materials.
These two statutes have been utilized in tandem to mandate the EPA Comprehensive Procurement Guideline, which was first published in the Federal Register in 1995 and is used to designate items that promote the use of recovered materials.
Under RCRA Section 6002, the EPA must review and update guidelines for items made from recovered materials at least every five years, and no later than November 15, 2030. These guidelines, part of the Comprehensive Procurement Guideline (CPG) Program, ensure federal agencies procure products using recycled materials. Despite this requirement, the EPA has not updated the CPG since 2007, and no new designations have been made. It is unclear whether the mandated review has even occurred.
The current CPG identifies eight categories of products: paper, construction, transportation, park and recreation, landscaping, non-paper office, vehicular, and miscellaneous, with sixty-one (61) designated items. Despite the growing importance of sustainability, REPs are notably absent from this outdated list. “Vehicular Products” or “Miscellaneous” could theoretically include REPs, but the items listed under “Miscellaneous” are not directly related, and no evidence suggests that agencies use “Rebuilt Vehicular Parts” for this purpose.
The EPA determines the CPG categories through rulemaking, and there is no statutory barrier to expanding it to include renewable energy technologies. With the projected waste from renewable energy products and the U.S. government’s significant procurement power, the EPA could lead in sustainable procurement by adding a “renewable energy” category. This could cover renewable energy products like wind turbines, solar panels, and lithium batteries, positioning the United States as a global leader in circular economy practices and inspiring other nations to follow suit.
It is evident that linear economic models are not suitable for the current waste generation and a transformative shift is necessary. The linear model has saddled the world with environmental degradation, biodiversity loss, and climate change. As we approach the precipice of emitting 65 billion tons of GHG by 2030, the urgency of a circular economy model is a necessary step that EPA must consider.
Renewable energy is a burgeoning sector, and the EPA must take advantage of this moment to regulate and promote a circular system. The federal government, with its unparalleled influence as the world's largest consumer, has the power to drive systemic change. Once agencies know which products and services are utilizing circular economics within their business models, the transformation could happen quickly.
The time to transition the United States to a more circular economy is now. The environmental challenges posed by a linear model demand a paradigm shift toward circular economies. As humanity stands at the intersection of climate catastrophe and technological ingenuity, there has never been a better time to design a circular future.
This paper, originally submitted as the winning entry in the recycling-themed category of the ABA SEER 2024 Law Student Writing Competition, has been edited for publication. The article was edited by Vidhya V. Iyer of Iyer Law Group, LLC, Rockville, Maryland.
