Recycling Is Rubbish: Reinvent, Realign, and Restructure U.S. Material Management

Date01 July 2022
AuthorJames D. Brien
by James D. Brien
The United States currently does not have capacity to recycle its waste domestically, nor can it export the
amount of waste it once did. Many states are trying to solve this crisis through novel legislation, but states
cannot solve this crisis on their own. This Article argues that the federal government should take the lead in
developing new law and policy designed to increase national recycling rates. Specifically, it proposes enact-
ing federal legislation to: (1)eliminate special tax subsidies for virgin materials; (2)charge a fee to produc-
ers of packaging materials; (3)reform regulations on environmental marketing claims; and (4)standardize
recycling bins across the country. These four steps will work together to substantially increase U.S. recycling
rates, while also decreasing the volume of packaging waste in the waste stream.
James D. Brien is a 2023 J.D. candidate at Vermont Law School.
The amount of municipal solid waste produced in the
United States has increased almost ever y year since
1960, and now averages almost ve pounds per per-
son, per day.1 e U.S. Environmental Protection Agency
(EPA) estimates that in 2018 the United States generated
more than 292 million tons of this waste.2 Between 30%
and 65% of it comes from one source: containers and other
packaging materials.3 e United States then incinerated or
1. U.S. Environmental Protection Agency (EPA), National Overview: Facts
and Figures on Materials, Wastes, and Recycling,
and-gures-materials (last updated July 14, 2021) [hereinafter National
Overview]. Municipal solid waste is composed of the various items consum-
ers throw away after being used; it excludes construction and demolition
debris, wastewater sludge, and industrial wastes. Id.
2. Id. But see R C, E I, P M-
 I: E E M  S U
 P 13 (Naka Kondo ed., 2021) (estimating U.S. municipal solid
waste as 353.5 million tons in 2016).
3. See U.S. EPA, Containers and Packaging: Product-Specic Data, https://www.gures-about-materials-waste-and-recycling/containers-
landlled more than 60% of these 292 million tons.4 e
emissions produced by incinerating and landlling at this
rate har ms people, resources , and the environment.5 is is
unsustainable; recycl ing is crucial.
But the United States is currently in a recycling cri-
sis, making its landll and incineration rates higher now
than in 2018.6 is crisis is self-inicted. For decades, the
United States relied on other countries, mainly China,
to process and recycle (or burn or landll7) its municipal
and-packaging-product-specic-data (last updated Mar. 8, 2022) (report-
ing that packaging makes up 28% of municipal solid waste); University of
Southern Indiana, Solid Waste & Landll Facts,
solid-waste-landll-facts/ (last visited May 19, 2022) (reporting that pack-
aging makes up 65% of household trash).
4. National Overview, supra note 1.
5. See infra note 48 and accompanying text.
6. Cf. Alana Semuels, Is is the End of Recycling?, A (Mar. 5, 2019),
stopped-accepting-our-trash/584131/ (reporting that most “recyclables”
in the United States are now landlled since China will no longer accept
most U.S. waste); Melanie Rybar, Expert Focus: How Is the US Approach-
ing the Regulation of Packaging Materials?, C. W (Oct. 21, 2021),
ing-the-regulation-of-packaging-materials (explaining that COVID-19 has
only exacerbated the U.S. waste problem by increasing packaging waste).
But see T L B C  B P, T R T
A  U.S. P R R: 2021 U.S. F  F
2 (2022) (reporting a striking 5%-6% (or lower) plastics recycling rate and
claiming “[e]ven when millions of tons of waste plastic were still being ex-
ported to China each year, plastics recycling never managed to reach 10%”).
7. See Kenneth Rapoza, China Doesn’t Want the World’s Trash Anymore. Includ-
ing “Recyclable” Goods, F (Nov. 29, 2020),
Author’s Note: The author would like to thank his advisors
for all of their wonderful help in this undertaking: John
Echeverria, Christopher Davis, Ashely Monti, and Heath-
er Francis. He is also grateful to the numerous people
who read through this Article and gave their feedback
and editing help; he could not have done it without all of
their support.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.
solid waste.8 China no longer buys this wa ste.9 e United
States tried sending it elsewhere.10 It soon inundated other
countries that also stopped accepti ng shipments.11 Because
of its past reliance on China, the United States fai led to
build the necessary infrastructure to manage its own
waste, and it is currently ill-equipped to do anyt hing but
landll or incinerate.12
Now that the United States is stuck with most of its
waste, it has no option but to develop plans to properly
manage it. Individual states do not have the funds or the
economies of s cale to handle t he whole issue.13 e solution
to this crisis begins with the federal government. Because
of its resources, expertise, a nd ability to set uniform policy,
the federal government is uniquely suited to address U.S.
waste management issues.
To protect people, resources, and the environment,
the federal government needs to adopt and implement a
national recycling fra mework that increases the domestic
market for recycled materials. Sad ly, decades of lackluster
legislation and regulation has left a patchwork recycling
system across the United States that is inecient, costly,
and wasteful. is Article proposes a national law to bet-
ter manage packaging waste, the single largest source of
municipal solid waste.14
e proposal—the Comprehensive Overhaul of Materi-
als Management, Eciency, and Resource Conser vation
Excise Tax (COMMERCE) Act—borrows features from
current state and international laws. e proposed Act
has four main parts: (1)it repeals tax subsidies for virgin
material extraction to make reprocessed materials more
more-including-recyclable-goods/?sh=2e1c891a7290 (“e fact is, many
pieces of plastic, including those with recyclable icons on them, are not re-
cycled in the U.S. And when China, or other developing nations get a hold
of them, they simply end up in a landll, or in a storage facility somewhere,
never recycled.”).
8. Megan Manning & Stephanie Deskins, Making It Usable Again: Reviving the
Nation’s Domestic Recycling Industry, 50 G G U. L. R. 107, 114
9. For years, China made money by using its cheap labor force to sort, process,
and repurpose waste to be sold back to the world as new products. However,
as China became richer, and its environmental laws became stricter, China
no longer wanted to be the world’s waste processing center. Id. at 113-17.
10. Colin Parts, Waste Not Want Not: Chinese Recyclable Waste Restrictions, eir
Global Impact, and Potential U.S. Responses, 20 C. J. I’ L. 291, 303-04
11. Id. See also C, supra note 2, at 24-25 (describing U.S. plastic ex-
ports to poor countries and the interplay with the Basel Convention, which
the United States has yet to ratify).
12. Manning & Deskins, supra note 8, at 109-12.
13. Id. at 109-10. Cf. Ex-Post Evaluation of Five Waste Stream Directives,
E. P. D. (COM 397) 36 (2014) [hereinafter Waste Stream Evalu-
ation] (showing that economies of scale are necessary to benet from
certain economic and environmental advantages associated with waste
prevention and reuse). Nor do corporate pledges go far enough to address
the crisis without regulation. See, e.g., C S  ., P
P P F R iii (2022) (concluding that cur-
rent corporate pledges to use more recycled content will have a minimal
impact on marine debris).
14. Sara Hartwell, Presentation at Federal Trade Commission (FTC) Green
Packaging Claims Workshop Session 2: Parceling Out the Green Guides—
Do ey Need Rewrapping? (Apr. 30, 2008), in FTC, E
M G R 74 (2008) (P954501),
script-3.pdf [hereinafter Packaging Workshop].
competitive15; (2)it charges producers of packaging waste
a fee to encourage reducing, reusing, and rec ycling, and
to fund domestic recycling infrastructure16 ; (3)it creates
national labeling requirements to decrease consumer con-
fusion about recycling17; and (4) it creates separate, uni-
form recycling bins for dierent materials to streamline
waste management and increase eciency.18 While this
proposed law is not the ultimate solution to the U.S. waste
problem, it will start the United States on the road away
from the la ndll.
e Article argues that the federal government must
reform parts of U.S. waste management and tax policy in
order to maximize recycling throughout the country. Part
I discusses the importance of recycling, and explains the
challenges the United States faces i n attempting to increase
recycling rates. Part II describes current federal law gov-
erning solid waste management in the United States, and
discusses its inadequacies. Part III analy zes California’s,
Maine’s, and Oregon’s solutions to the recycling crisis,
and discusses examples from the European Union (EU)
and South Korea. is part a lso argues that the scale and
complexity of recycling demand a national solution, and
proposes the COMMERCE Act. e Act lays out several
key elements from the above examples that oer real prom-
ise for achieving progress on the critical issue of managing
packaging waste.
I. Background
A. Recycling: Why Does It Matter?
Per capita, Americans consume more of the world’s
resources than citizens of any other country: “With less
than 5 percent of world population, the U.S. uses one-third
of the world’s paper, a quarter of the world’s oil, 23 percent
of the coal, 27 percent of the aluminum, and 19 percent
of the copper.”19 Much of these consumed resources end
up as waste, with America ns producing half of the world’s
waste.20 Many of these resources a re non-renewable, but
they are recyclable.21 On the global level, the United States
has failed to commit to susta inable waste management and
adhere to international sta ndards.22
15. See discussion infra Section III.A.
16. See discussion infra Section III.B.
17. See discussion infra Section III.C.
18. See discussion infra Section III.D.
19. Roddy Scheer & Doug Moss, Use It and Lose It: e Outsize Eect of U.S.
Consumption on the Environment, S. A.: ET (Sept. 14, 2012),
its/. ey also report that the average American uses as many resources as 35
average Indians or 53 average Chinese. Id.
20. Id.
21. Non-renewable resources, like oil (used to make many plastics) and miner-
als, are materials that earth cannot quickly regenerate. However, depending
on the material and the recycling process, many non-renewable resources
can be recycled and used again. W R. B, T S-
 H 564 (2d ed. 2015).
22. C, supra note 2, at 61. But see United Nations Environment As-
sembly of the United Nations Environment Programme Res. UNEP/EA.5/
Re.14, End Plastic Pollution: Towards an International Legally Binding In-
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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