Who's Responsible?

Over the past few years, electronics manufacturer take-back laws have continued to gain traction at the state level as legislatures act upon a desire to collect and recycle end-of-life electronic devices to divert hazardous materials from the waste stream and to promote sustainability. Thus far, 19 states and New York City have passed extended producer responsibility (EPR) laws mandating that electronics manufacturers finance and facilitate collection and recycling of their products after consumers have exhausted their use of them.

Among the common measures required by the various state-specific laws include establishing permanent collection sites, holding periodic collection events and/or offering a mail-back service for electronics devices. As such laws were being drafted and adopted by state legislatures, electronics industry associations had only threatened to file lawsuits challenging mandates that they believed to be especially burdensome for electronics manufacturers. Until now.

In July 2009, the Consumer Electronics Association (CEA) and Information Technology Industry Council (ITI) jointly filed a lawsuit challenging the constitutionality of New York City’s electronics recycling law, specifically citing a mandate for door-to-door collection that the organizations say they view as 
“unprecedented, unfair and illegal.” The organizations maintain their concerns are directed at the New York City law and not at other state laws or at the concept of producer responsibility in general.

“Our objections to the legislation are specific to New York City. It is important to note that we do not oppose producer responsibility. In fact, the consumer electronics industry, including manufacturers and retailers, exercises producer responsibility in other states where it is a law and also voluntarily in states where it is not a law. Our industry recycles hundreds of millions of pounds of e-waste per year,” say the CEA and ITI in a joint statement.
Since the lawsuit was filed, electronics recycling organizations, advocates of producer responsibility and members of state legislatures have taken an active interest in the case. These parties have expressed concern about the potentially far-reaching effects a favorable judgment for the CEA and ITI by the United States District Court for the Southern District of New York would have on current EPR laws and the future of product stewardship in United States.

HISTORY OF THE CASE
To understand the dynamics at work in the case of CEA and ITI v. the City of New York, it is helpful to determine why the plaintiffs chose New York City’s electronics recycling law as the first EPR law to be challenged in court.

In 2008, the New York City Council passed the initial EPR law, which held manufacturers responsible for meeting specified collection goals, according to Kate Sinding, senior attorney for the National Resources Defense Council (NRDC), which is based in New York City. (The NRDC was involved in advancing and advocating the passage of the New York City electronics law and subsequently intervened as a defendant in the lawsuit brought about by CEA and ITI to help the city defend its law and also filed an amicus brief in support of the city.)

Sinding says the collection goals were strongly opposed and successfully lobbied against by the electronics manufacturing industry. As a result, the mandatory collection goals were replaced with a requirement calling for manufacturers to provide convenient collection to the city’s residents. Mayor Bloomberg signed the revised bill into law and directed the Department of Sanitation to create rules regarding the convenient collection requirements contained within the legislation, according to Sinding.

In constructing specific rules for convenient collection requirements, the city’s Department of Sanitation included in its rules a mandate for electronics equipment manufacturers to provide a direct collection option for residents disposing of electronics devices weighing more than 15 pounds. Sinding says the direct collection requirement was added in response to the city’s dense population and low rate of car ownership. 

Upon learning of the rules required to satisfy convenient collection, the CEA and ITI raised concerns over the costs, environmental impact and legality of direct collection from consumers, leading them to file the lawsuit challenging New York City’s electronics recycling law.

“New York City’s private door-to-door pickup obligation is unprecedented, disastrously expensive and will harm the environment by putting additional trucks on city streets,” the CEA and ITI say in a joint statement. The organizations estimate that the direct collection requirements will cost manufacturers more than $200 million annually, resulting in cost increases to consumers and job losses. 

While Sinding, the NRDC and New York City say they understand the concerns raised by the CEA and ITI, they claim that the industry organizations are misinterpreting the intent of the law. Sinding says industry has misinterpreted the intent of the law as meaning manufacturers need to provide immediate response for residents requesting direct collection, which has led to cost and emission projections that are “extremely dire and economically burdensome.”

Regardless of how the court interprets the measures required by the direct collection provision of the New York City electronics law, the mere challenge that the law is unconstitutional by the CEA and ITI has attracted the attention of electronics recycling associations, advocates of product stewardship and members of state legislatures. 

WHAT’S THE BIG DEAL
Oral arguments for the CEA and ITI’s lawsuit against New York City’s electronics recycling law are scheduled for Jan. 19, 2009, and Sinding expects a final decision from the court no sooner than February. The court’s decision will only directly impact the collection of end-of-life electronics in New York City, so why are advocates of electronics recycling and product stewardship as well as politicians in states that have already passed EPR laws so concerned?

“Certainly the stakes are high,” says Barbara Kyle of the Electronics Takeback Coalition (ETC), a San Francisco-based advocate for electronics EPR laws. “If the court ultimately finds that the law is unconstitutional, we can certainly expect that industry will file similar types of challenges against other states with strong laws.”

Heidi Sanborn, executive director of the California Product Stewardship Council (CPSC), based in Sacramento, contends that if the court rules that the New York City law is unconstitutional, it could undermine product stewardship, not only in the electronics industry, but across all industries.

“We already have a producer responsibility law in place in California for mercury thermostats,” says Sanborn. “We passed that [in 2008] and are currently rolling out the thermostat collection program. If the court were to decide there is a constitutional question, it would raise such a huge red flag with the state that it might stop implementation of the existing thermostat law and cause the legislature to stop consideration of live EPR bills on paint and EPR framework,” she continues.

Kyle also says CEA and ITI’s claims of not challenging the overall notion of producer responsibility are misleading. She cites a specific example within the verbiage of the plaintiffs’ complaint that she says is a constitutional challenge to the general idea of producer responsibility: “The E-waste Program retroactively and fundamentally alters the terms of the original contract of sale for a CEE (consumer electronics equipment) between the manufacturer and the consumer (or distributor, retailer, etc., as the case may be). Prior to the enactment of the E-waste Program, a manufacturer sold the CEE for a certain price, relying on the fact that the manufacturer was permanently transferring full title and it would not be required to take title to the product again at the end of its useful life.”

An amicus brief filed in support of the CEA and ITI Dec. 11, 2009, provides further evidence that impact of the court’s decision will reach beyond the electronics industry and New York City. The brief was jointly filed by several non-electronics manufacturing associations. Within the amicus brief, the associations say they “are also greatly concerned that allowing the E-waste Program to take effect will encourage other jurisdictions to adopt laws that shift disposal costs historically borne by voting local taxpayers who discard consumer products onto non-voting, out-of-state or off-shore manufacturers who make them.”

The one goal that the parties say they have in common is to collect and recycle end-of-life electronics. Both sides say they want to work in cooperation to meet this goal, yet neither seems to believe its counterpart is contributing enough. In January, the CEA, ITI and defendants in the case will convene for oral arguments, as the future of both the city law and EPR laws in general remain uncertain.   

Until then, the question remains: Who’s responsible?

The author is assistant editor of Recycling Today and can be reached at zlloyd@gie.net.