E-waste showdown unearths deeper questions

Oral hearings are scheduled to start next month in a court case that could test the limits of manufacturer participation in electronics recycling.

The case pits New York City against tech industry groups the Computer Electronics Association (CEA) and the Information Technology Industry Council (ITI), which are seeking an injunction to stop the city's proposed electronics recycling program.

In a background conference call on Thursday, supporters of the city's recycling mandate said the notion of "extended producer responsibility," or taking on some of the cost of recycling used electronics, is being put on trial. There is also concern that a ruling in favor of the CEA and ITI could weaken existing programs or stall passage of new ones, they said.

The growing amount of e-waste, which contains heavy metals and other hazardous materials, has led 19 states to introduce electronics recycling legislation, said Scott Cassel, the executive director of product stewardship council. In addition to electronics, there are 31 states with producer responsibility laws for some sort of product, such as paints or thermostat and light bulbs that contain mercury.

Forcing electronics manufacturers to take responsibility for goods at the end of their useful life shifts the cost of recycling to users and producers of goods, rather than states and municipalities, said Melissa Walsh Innes, a state representative from Maine, which has had recycling regulations in place since 2004. In addition, mandatory recycling creates an economic incentive to design easy-to-recycle products without hazardous materials, she added.

"We believe it is unfair to ask all our taxpayers and ratepayers to cover all these costs. This move to producer responsibility puts the onus on the manufacturers and consumers of products, not every single taxpayer," Walsh Innes said.

Until now, electronics and computer industry manufacturers have complied with state laws. Five companies--Sharp, Panasonic, Toshiba, Vizio, and Mitsubishi Electric--created MRM, a company that offers recycling services nationwide. There are now 400 drop-off sites, which should grow to 600 by the end of next year, said Peter Fannon, vice president of corporate and government affairs at Panasonic of North America.

The industry associations, however, are contesting the legality of the New York plan, arguing that it's unconstitutional and designed in a way that places "enormous burdens and costs" on manufacturers. In its motion for a preliminary injunction (click for PDF), the CEA and ITI single out a rule where "direct collection" must be provided for all electronics over 15 pounds.

During a keynote at last week's Consumer Electronics Show, CEA president and CEO Gary Shapiro called city's law "ridiculous," saying that "it will require manufacturers to send trucks to consumers' homes to pick up old products." He added that the CEA plans to a propose a market-based national recycling system to Congress this year based on the principle of shared responsibility.

But that's not an accurate picture of what will be needed to comply, contends Kate Sinding, a senior attorney at the National Resources Defense Council. The NRDC has joined New York to defend the recycling law, although not specific regulations in how the program is designed, such as its direct collection rule.

"The plaintiffs are interpreting the direct collection requirement in the most onerous, burdensome, and frankly absurd way possible. This doesn't mean there's an on-demand pick up requirement," Sinding said. Instead, manufacturers could, for example, contract with third-party waste haulers to do the pick up on a regular schedule, she said.

The NRDC favors rules where manufacturers need to meet performance requirements, such as a certain number of pounds recycled. It appears that the industry group's interpretation of the direct collection requirement "pushed them over the edge" and prompted the legal challenge to the New York City law, Sinding said.

In practice, states with mandatory recycling laws are seeing higher rates of electronics collection and recycling, said Barbara Kyle, the national coordinator for the Electronics TakeBack Coalition. Voluntary programs, meanwhile, don't provide full coverage for a state and aren't the primary driving higher recycling rates. In all of New York state, for example, the MRM program only offers two drop-off recycling sites for millions of people.

"These companies have on their Web sites, in their sustainability reports, in their PR--they have all kinds of statements that 'We support recycling and we believe there should be producer recycling.' The question on the table is, do they really?" Kyle said. "This case is not about New York City really...This is about the states being able to compel them to create meaningful programs."