NYC E-Waste Lawsuit: Attack on Producer Responsibility

January 10th, 2010

The electronics industry wants you to think they support the concept of “producer takeback” – where they take back and recycle our old products when we are ready to retire them. In fact, most of the computer companies and now some of the television companies offer “voluntary” takeback programs, to recycle our old products.

But they don’t see a lot of volume coming through these voluntary programs. The computer companies mostly use mailback programs, and frankly most people won’t mail back their old electronics (unless they get some money back for them). The TV companies must set up physical collection sites (since TVs are too big to mail back), but typically these takeback programs have only a few sites in each state.

States with strong takeback laws see real effort from the manufacturers

The exception to the weak takeback performance is in states with “strong” takeback laws. Those are states whose laws actually mandate a certain level of performance or convenience that actually translates to significant volumes of e-waste being collected. These include Minnesota, Washington and Oregon, and will include additional states which have passed strong laws, but are starting up their programs later in 2010 or in 2011.

New York City is another place that passed a strong law – but because it’s strong, the electronics industry has filed a lawsuit to stop the implementation of the law, which should have been implemented in July of 2009. The electronics companies are hiding behind their industry associations – CEA and ITIC – which filed the lawsuit arguing that it’s unconstitutional to pass takeback laws at the state or city level.

It’s not really about the New York law

This lawsuit isn’t really about New York City or even about e-waste. The suit is the industry’s attempt to stop the states (and in this case a large city) from requiring them to actually take back their old products – to actually make their takeback programs do what they say they should do.   Nineteen states plus New York City have passed producer responsibility laws so far, and more states are poised to do so in 2010. States are also passing takeback laws establishing producer responsibility for other products which are toxic, and therefore challenging to manage safely in the waste stream, including various items containing mercury (thermostats, lamps, switches), paint, pharmaceuticals, medical sharps, and other products.  Maine has passed takeback laws for five products, the most of any state.

What’s the beef? Much of the verbiage in the industry’s legal filings concerns a requirement in the regulations, not the law, that specifies what companies must to do meet the obligation under the law that their programs be convenient.  In interpreting that requirement, the City’s crafted regulations requiring that manufacturers  provide “direct collection” options for consumers for products 15 lbs or more. The idea is that because New York City is not like many other locations, where residents mostly have cars and can drive to collection events in large parking lots, that the takeback service needed to be as convenient as it was to purchase the products in the first place.

The industry doesn’t like this direct collection requirement, but the lawsuit doesn’t stop with challenging that specific regulation. The lawsuit makes many constitutional arguments that challenge the fundamental right of states to pass such takeback laws, that go far beyond this regulation on direct collection.  State legislators,  local government representatives, and NGOs who have fought hard to pass e-waste takeback laws over the years, clearly see this lawsuit as a full-on attack on producer responsibility, despite the fact that many of the companies paying for the lawsuit have clear statements on their websites and sustainability reports claiming support for the concept of producer takeback.  In light of this lawsuit, we can only believe that these statements are simply greenwashing, by companies that want us to believe that they are doing the right thing.

What’s ironic is that the original New York City ordinance didn’t have any convenience requirement at all. The original law had performance measures – requiring the companies to meet a collection goal tied to the amount of electronics they are selling into the city. Because of pressure from the manufacturers opposing these goals, the Council changed the ordinance to add the convenience requirement. So it’s the companies’ own lobbying that brought about this situation in the first place.

The Court is scheduled to hear opening arguments regarding the injunction against implementing the program on Feb 10, 2010.