Finally, a Farewell to Foam Coffee Cups and Clamshells in NYC

VICTORY! Appeals court upholds ban on polystyrene foam cups and clamshells in nation’s largest city.

A New York State appeals court has affirmed a lower court ruling, upholding New York City’s ban on polystyrene food and beverage containers and delivering a victory to all who care about reducing street litter and waterway pollution in the nation’s largest city.

The decision seemingly ends a five-year industry campaign to block implementation of an anti-litter and pollution-reduction law that was enacted by the New York City Council back in 2013.

In May 2017, New York City Sanitation Commissioner Kathryn Garcia issued a determination in which she concluded, after extensive analysis, that dirty polystyrene foam coffee cups and clamshells could not be recycled “in an environmentally effective or an economically feasible manner.”

“For 30 years, attempts to recycle Food-Service Foam—both subsidized and non-subsidized attempts—have failed at each step of the recycling process,” she wrote at the time. And consistent with the 2013 law, sponsored by former Councilmember Lewis Fidler, the Commissioner directed that New York City food service establishments end the use of polystyrene food and beverage containers and instead use more environmentally friendly substitutes.

That determination was challenged in court by the Dart Container Corporation and its allies, including an industry-funded group called the Restaurant Action Alliance. (That group had also brought an earlier challenge to the Commissioner’s first proposal to ban foam in 2015.)

In response to the continuing industry litigation, the New York City Council, under the leadership of Councilmembers Brad Lander and Antonio Reynoso, began preparations to enact additional legislation aimed at securing a ban on these environmentally troublesome containers once and for all.

And in June 2017, Supreme Court Justice Margaret Chan turned away the latest industry challenge. But the Restaurant Action Alliance appealed.

The Appellate Division’s decision, which was made available today, affirmed the lower court ruling.

The unanimous decision of the Manhattan-based Appellate Division, First Department, concluded that the Commissioner’s determination that dirty foam could not realistically be recycled “was neither arbitrary and capricious, nor without a rational basis.”

Beginning January 1st, polystyrene foam food and beverage containers will disappear from New York City restaurants as more environmentally friendly cups and clamshells replace them.

Associations Now

Around the nation, more than 200 cities and counties have banned or otherwise restricted the use of polystyrene foam food and beverage containers, which are environmentally problematic—in part because of their brittle composition. These white foam coffee cups and food clamshells break apart easily, causing litter problems and entering storm-drains, where they are funneled into local waterways. The polystyrene containers also cause problems at recycling sorting facilities, where their tiny foam nuggets contaminate other recyclables.

When New Yorkers wake up on January 1st, the city’s streets and waterways are going to have less litter and pollution as a result of this well-grounded, fact-based Appellate Division ruling.

NRDC, which helped lead a coalition supporting passage of the 2013 City Council law and which submitted expert evidence to the Commissioner and an amicus brief in support of the City’s position in the first court proceeding, welcomed today’s decision and expressed thanks to Commissioner Garcia, the New York City Council and the many environmental groups, solid waste experts and community activists who rolled up their sleeves and contested the efforts by the plastics industry to defeat this sensible environmental protection law.

About the Authors

Eric A. Goldstein

Senior Attorney and New York City Environment Director

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