Fighting Off Industry's TakeBack Attack (While Securing New Yorkers' Right to Recycle E-waste)
It’s been some time since I last posted on developments in industry’s attack on New York City’s e-waste takeback law (see also here), and there is much to report.
Since I wrote back in July that two trade associations had filed suit challenging the constitutionality of the New York City law, NRDC made the decision to become a formal party, intervening as a co-defendant with the City. (The Electronics TakeBack Coalition has posted all of the court filings on its website, along with other helpful background information on the suit.) Our decision to do so was for two principal reasons.
First, NRDC’s history with the City law is long and deep. We helped draft the original bill language and worked closely with its sponsors and other policy makers to make it as strong and effective a law as we could. We were a leading advocate for the bill’s passage, putting together an impressive coalition of supporters representing not only the environmental community, but also recyclers, retailers and some manufacturers, which helped push it over the finish line. So we felt we had a strong organizational stake in seeing the law upheld.
Second, as part of a national coalition advancing takeback laws in states across the country, we felt it critical that we do all we could to ensure that New York City’s takeback law survived industry’s attack. Why is it so important to defend this one law? Because the lawsuit is so broadly drafted that – if successful – it would put every takeback law in the nation at risk. The manufacturers claim that they don’t object to producer responsibility generally (and are happily complying with the e-waste laws in 19 other states), and that their only beef is with the City’s law – which they contend is more onerous than any other law. But their 5 constitutional challenges (running the gamut from the Commerce Clause to Equal Protection to Takings) don’t just attack the City law. They attack the fundamental principles embodied in producer responsibility. (See this factsheet for concrete examples.)
Moreover, it is not in fact New York City’s law that contains their most complained of aspect, it is the implementing regulations. Specifically, industry complains about a single provision in the regulations that requires them to offer City resident the option of direct collection for heavier e-waste items (in addition to mailback programs, collection events and permanent collection facilities). Yet this so-called “direct collection” requirement stems directly from the inclusion in the law of a provision they requested: one requiring that City residents be provided with “convenient collection.” At industry’s behest, this requirement was inserted in lieu of NRDC’s preferred approach, which would have required that they collect mandatory minimum amounts of waste each year, but leaving it entirely up to them to figure out how best to do so.
In other words, because computer and TV manufacturers now don’t like the way the convenient collection standard they insisted on including in the City’s law has been interpreted, they have filed a lawsuit that could bring down the whole takeback movement. Make no mistake: this is producer responsibility on trial.
NRDC, together with ETBC and other advocates and supporters for the producer responsibility approach, held a press briefing yesterday on the lawsuit, which resulted in a good amount of blog and trade press coverage. (ZDNet’s piece has a poll at the end where you can go and vote for option 1: manufacturers should bear responsibility for managing their discarded electronics.) We not only explained what’s at stake for other state producer responsibility laws, but also exposed industry’s lie. While they regularly tout their green credentials, some even claiming to embrace producer responsibility, the breadth of the New York City lawsuit lays bare that they want to kill the approach wherever it’s adopted.
We are confident that New York City’s – and all of these other takeback laws – are constitutional. And we look forward to our opportunity to argue our case to the judge (which is currently scheduled to happen in early February).
For the meantime, New Yorkers continue to be deprived of a citywide e-waste recycling program. Fortunately, organizations like the Lower East Side Ecology Center, partnering with progressive retailer Tekserve, continue to offer periodic collection events. See this release about an upcoming event this weekend, and visit LESEC’s website for information on upcoming events.
But while these events are most welcome and help bridge the gap, we desperately need a comprehensive e-waste law that will give all New Yorkers access to a free, convenient method for getting rid of their accumulating stockpiles of unwanted electronics.
While we help defend the City’s attempt to do so, we will also keep up the hard push for a New York State law extending this right to all New Yorkers.