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Plastic Watch: Congress Considers Bill to Impose Extended Producer Responsibility, AKA ‘You Break It, You Buy It’

Summary:
By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans. Senator Tom Udall and Representative Alan Lowenthal introduced on 11 February the Break Free from Plastic Pollution Act, legislation that imposes responsibility for disposing of plastic waste onto producers, and which encouragingly, has attracted strong opposition from the plastic industry. First up, I want to flag a recent grist article, which highlights the looming threat: Big Oil’s plan to ramp up American plastic production, Big Oil’s Plan B is already in the pipeline: More plastic. We’re engaged in a giant game of whack-a-mole, where the industry has huge incentives to find new uses for plastic, to replace any types that get banned or

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By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

Senator Tom Udall and Representative Alan Lowenthal introduced on 11 February the Break Free from Plastic Pollution Act, legislation that imposes responsibility for disposing of plastic waste onto producers, and which encouragingly, has attracted strong opposition from the plastic industry.

First up, I want to flag a recent grist article, which highlights the looming threat: Big Oil’s plan to ramp up American plastic production, Big Oil’s Plan B is already in the pipeline: More plastic. We’re engaged in a giant game of whack-a-mole, where the industry has huge incentives to find new uses for plastic, to replace any types that get banned or curtailed. Under the current system, the producer players book the profit for plastic products and the government – and society more generally – either pays to clean up, or drowns under, the increased waste.

The US plastic recycling system is notoriously inefficient, more a massive exercise in virtue signalling than an effective waste management system. Only 8% of plastic waste is currently recycled, with the rest incinerated landfilled or shipped overseas to places even less able to process it, according to EcoWatch, Groundbreaking Legislation Would Help U.S. ‘Break Free From Plastic’. The world recycling system has broken down, ever since China elected not to accept any more plastic imports beginning in 2018. Since then, the recycling systems of many developing countries have been overwhelmed by plastic waste imports, and others have followed China’s lead, including recently, Malaysia. In January, China banned many types of single use plastic, to be implemented over five years (see Plastics Watch: China to Ban Single-Use Plastics, Malaysia Rejects Waste Shipments).

Now, even if recycling rates were a perfect 100%, we should not use that fact as carte blanche for producing plastic. First, most plastic is currently made from fossil fuels. We simply cannot continue to use fossil fuels in this way. A 2019 report from the Center for International Environmental Law found the emissions in 2019 from the production and incineration of plastic to be  more than 850 million metric tons of greenhouse gases – equal to the emissions from 189 five-hundred- megawatt coal power plants. By 2050, this figure is expected to more than triple, to the equivalent of 615 such plants. Second, any system that deals with plastic by recycling, especially if shipments to other countries are involved, also unnecessarily consumes fossil fuels.

What the Legislation Would Do

What’s most innovative about the legislation is that it incorporates the concept of extended producer responsibility (EPR) for plastic bottles, packaging and assorted items, along with creating a national container deposit system, according to Waste Dive, Break Free From Plastic Pollution Act debuts in Congress, instigating packaging EPR debate.

As EcoWatch reports:

Lowenthal said he and Udall had been working on crafting the legislation for about a year.

“First and foremost, the Break Free from Plastic Pollution Act removes the burden of waste collection and recycling from the cities, from states, and, most importantly, from taxpayers, and puts it where it belongs: on the producers and the companies putting out these unsustainable products into the marketplace,” Lowenthal said in Monday’s press call.

I think of EPR as a version of the old idea: “You Break it, you Bought It,” in that it imposes responsibility for waste management on those who produce the offending material. If they know they have to bear the costs of clean-up, they can elect not to produce the offending material.

Many plastic waste measures are pending in Congress, but as Waste Dive notes:

“Ours is the only bill in Congress that deals with the source of the problem,” Udall asserted.

Now, I should say that I would define the scope of the problem much more broadly, to include the whole plethora of unnecessary plastic. That being said, this legislation seems to me to be more than he same old same  old invocation of the recycling mantra, with a twist of virtue signalling bans.

Seems also that US policymakers are looking north for examples of places that have rolloed out EPR systems, according to Waste Dive:

Two archetypal EPR models currently exist in Canada, associated with two different provinces, Québec and British Columbia. The Québec model relies more on pre-existing systems and infrastructure, with producers reimbursing local municipalities for costs incurred. The British Columbia model implements a system where producers are largely in charge of the full process, from production to recycling.

The bill has several ground breaking components, according to EcoWatch:

  1. It requires plastic producers to take responsibility for their waste. The bill would shift the burden of waste collection and management from local governments and taxpayers to the manufacturers of items like packaging, containers, food service products and paper, who would be charged with designing and funding recycling systems.

  2. It establishes a nation-wide beverage container refund system. Anyone buying a beverage container of any type would be charged an extra 10 cents that would be refunded when they returned the empty item.

  3. It phases out the most polluting single-use plastics. Starting in Jan. 2022, highly polluting items like plastic bags, polystyrene containers and plastic stirrers and cutlery would be phased out. Straws would only be available by request. The bill would also introduce a nationwide plastic bag fee.

  4. It mandates minimum recycled content. The bill would require products to be made with increasing percentages of recycled material. For example, plastic bottles would need to be made of 25 percent recycled material by 2025 and 80 percent by 2040.

  5. It considers environmental justice. The bill would prohibit the U.S. from shipping waste to countries that cannot manage it. It would only be able to export waste to countries in the Organization for Economic Co-operation and Development, and only with their consent. Further, it puts a pause of up to three years on the granting of permits for facilities that create plastic so that the Environmental Protection Agency can update its safe air and water standards for these facilities.

Waste Dive recognizes that products that would be banned under the legislation extend beyond the familiar single-use plastic bags and straws:

Certain types of plastics increasingly under fire due to their low recyclability rates and potential for pollution would also be banned beginning January 2022. This would include plastic carryout bags; expanded polystyrene “food service products” and shipping materials; plastic stirrers and utensils; single-use bottles for shampoo and other hotel toiletries; and “non-compostable” produce stickers. Plastic straws would also be limited, but still available upon request. Relevant federal agencies would moreover be tasked with proposing measures to reduce the environmental impacts of plastic tobacco filters, electronic cigarette parts and derelict fishing gear.

Now, I sound a cautionary note. This legislation can only succeed if it imposes sufficient   penalties for plastic industry violations, and also zealously embraces enforcement, including allocating sufficient resources to achieve that goal. As Bill Black has said in another context, – and I paraphrase – the reason why the financial services industry gets away with what it does is not because the  statutory framework is per se defective, but due to the lack of willingness – and sufficient resources – to prosecute offenders. Lack of enforcement has been a prime reason the rule of law has broken down in the United States. This is not just a Trump phenomenon, but a trend since I first started paying close attention during the latter part of the Carter administration and the Reagan administration. It’s certainly accelerated since the turn of the millennium.

Merely shifting responsibility to an industry determined to shirk it ensures that no one will be responsible for cleaning up plastic garbage – which will continue to smother us.

Congress isn’t alone in mulling an EPR solution. Waste Dive notes:

This national discussion could factor into similar EPR proposals already advancing at the state level, including an upcoming bill in Maine that favors a Québec approach and has some potential buy-in from the waste industry. Vermont, California, Massachusetts, Oregon, Washington, Indiana, New York and Connecticut are also considering – or are set to consider – their own EPR policies in the near future.

Compare this to the industry-sponsored Save Our Seas Act 2.0, which the Senate passed in January, Plastic Watch: Senate Passes Save Our Seas Act 2.0. That bill eschew any bans and places touching faith in the recycling fairy, and imposes responsibility for recycling measures on government.

What Is to Be Done

The Udall/Lowenthal legislation is a first step towards a better plastic management system, in that an EPR approach places an onus on plastics producers, rather than on government, for cleaning up plastic waste. I think we must go much further – and soon – and ban more types of plastic packaging outright. It’s also crucial that we impose sufficient penalties – and more importantly, embrace a willingness to enforce the law zealously and also dedicate the resources necessary to do so. But I despair we can do this, given Big Oil’s plans to ramp up plastic production.

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