New York City’s decision to ban environmentally burdensome polystyrene foam food and beverage containers has been upheld by a New York State court in a fact-based ruling that clears the way for a phase-out of the ubiquitous white foam coffee cups and clamshells in the nation’s largest city.
In an 11-page decision, New York State Supreme Court Justice Margaret A. Chan decisively rejected an industry-backed challenge to New York City’s polystyrene ban. She concluded that New York City’s Sanitation Commissioner, Kathryn Garcia, acted in accordance with city law when the Commissioner determined in May 2017 that these troublesome containers could not realistically be recycled and should be banned.
Justice Chan ruled that the Sanitation Commissioner’s determination was a “rational” and “painstakingly studied decision.”
Since the widespread use of polystyrene foam coffee cups and food clamshells began here in the 1970s, their disposal has created litter and pollution problems throughout New York City. These containers often end up as litter on streets and sidewalks, parks and beaches. Because of their brittle composition, they break into small nuggets, creating clean-up challenges for property owners and city Sanitation and Parks Department employees. This foam litter often enters street corner storm-drains and is flushed into local rivers and bays where it can be mistaken for food by fish and birds.
In her ruling, Justice Chan outlined the detailed evidence that was presented by Commissioner Garcia to justify her decision that foam could not be recycled in a manner that was “environmentally effective and economically feasible,” pursuant to the 2013 statute. The evidence included a review of information submitted by the industry petitioners in the case, consultation with experts on economics and post-consumer plastics recycling, and extensive research and visits to recycling facilities.
NRDC, which submitted an amicus brief in this case with pro bono assistance from the law firm of Carter Ledyard & Milburn, also submitted evidence prepared by former NYC Sanitation Commissioner Brendan Sexton. This submission demonstrated that there was not, in fact, any legitimate market willing to purchase the city’s foam food and beverage containers and that no other big city in America had a successful recycling program operating for dirty polystyrene foam.
The effect of the Court’s ruling is to authorize Sanitation Commissioner Garcia to proceed with the Department’s planned public education efforts and six-month grace period before the law would take effect. By 2019, restaurants and food vendors would be prohibited from using foam containers and would instead have to turn to less environmentally burdensome materials for their cups and clamshells.
The Dart Container Corporation—the world’s largest manufacturer of polystyrene food and beverage containers—has spearheaded an extensive and expensive lobbying and litigation effort to upend the 2013 city law and the findings of the City’s Sanitation Commissioner. It is possible that Dart and its industry allies will appeal Justice Chan’s ruling. But the Court’s detailed review of the evidence and the thorough review conducted by Commissioner Garcia make it unlikely that this ruling would be reversed on appeal.
In short, this is a fact-intensive ruling that rejects the plastics industry's protestations and reaffirms the City’s determination that polystyrene foam containers should be phased-out and replaced by more environmentally friendly products. A direct result of this ruling will be cleaner streets and less trash on our beaches and in our waterways.
In addition to its impact in New York City, the Court’s determination gives a jolt to worldwide efforts to cut back on the ever-growing amounts of single-use plastics. Products like polystyrene foam food and beverage containers may provide a momentary convenience, but can linger in the environment for centuries.
One final note: under the 2013 city statute, the ban on polystyrene foam food and beverage containers will also apply to “polystyrene loose fill packaging,” also known as “packing peanuts.” This cling-fast packing material can not be lawfully sold in New York City once the ban takes effect.
The Court’s ruling brings vindication to many officials who have fought to reduce polystyrene food and beverage container litter and pollution for more than five years here in New York City. They include former Mayor Michael Bloomberg, who initially proposed the polystyrene ban in early 2013 and former Councilmember Lewis Fidler, who was the prime sponsor of the 2013 statute. Also deserving of public thanks are Mayor Bill De Blasio, Sanitation Commissioner Garcia and her staff, as well as Corporation Counsel lawyers, including Katie Schmid. Councilmembers Brad Lander and Antonio Reynoso and their colleagues deserve a special shout-out for their willingness to advance new legislation that would again ban polystyrene foam containers if such action had been necessary.
A broad coalition of environmental organizations, community groups, educators, and students also contributed to this victory. At the top of this list is Cafeteria Culture, led by Debby Lee Cohen, and the network of students and teachers who work with that organization across all five boroughs. Well-deserved thanks also go to Melissa Iachan and her colleagues at the New York Lawyers for the Public Interest, as well as the Manhattan Solid Waste Advisory Board, NY/NY Baykeeper, the New York City Environmental Justice Alliance, 350.org, Riverkeeper, Surfrider and We Act for Environmental Justice.