Stemming the Tide of Patchwork Policies: The Case of E-Waste

• Author: Joel Boon
• Position: J.D. anticipated May 2006, The University of Iowa College of Law; M.P.H. anticipated May 2006, The University of Iowa Co
• Pages: 731-757

Page 731

The author would like to thank his loving wife, Sacha, for her patience, and the TLCP staff for their work in editing this Note. He can be reached at joel.boon@gmail.com.

I Introduction

The world's most rapidly emerging waste stream is waste electronic equipment, commonly referred to as e-waste.¹ As the scope of the waste Page 732 stream grows, problems associated with this noxious brand of waste become increasingly apparent.² Policymakers are increasingly responding, both domestically and abroad. In the world community, this response has taken shape by single-state action and proposals, particularly in Asian countries,³ as well as regionally, specifically the European Union (EU). Domestically, there is no federal legal regime aimed at reducing the effects of e-waste. Federal voluntary programs do exist, but the ineffectiveness of these programs is reflected by the fact that U.S. states frequently implement mandatory e-waste laws of their own. There are positive and negative aspects to these particular state actions. It is good that these laws respond to a real problem, and some action is better than none. Also, with each new state that takes notice, a critical mass is developing that will influence federal legislators to take action. A primary reason that federal legislators will be influenced by state action is because of one of the downsides of state action: it creates a patchwork of policies. The incoherence can be difficult to navigate from a business perspective, and it creates burdensome compliance costs which are passed on to consumers. Page 733

The constitutional basis for Congress to regulate e-waste is unquestioned. The issue of e-waste, like so many others, therefore begs the questions of (1) when is it more prudent for Congress to exercise its Commerce Clause powers rather than to let states drive the issue, and (2) if the wisdom of national legislation is so apparent, what explains congressional reticence? A parallel of the first question applies with equal force with respect to the European Union. In Sections II and III this Note looks at how the European Union and the United States answer the questions raised by the case of e-waste. These sections look at the fragmented policies which once existed or which currently exist, and then look to the unifying response, if any, that has developed as a result of those fragmented policies.

Section IV offers that a mishmash of e-waste management policies is ultimately more harmful than beneficial, and that the United States would benefit by having a national legal regime directed at e-waste. Such a regime would stem the development of patchwork policies at the state level and perhaps bring the United States into conformity with the European Union, thereby easing a global patchwork of e-waste laws. When it comes to product design, however, such a national regime may not even be necessary as electronic producers increasingly take their cues from the European Union-as imperfect and fragmented as even those cues may be-and build their products in accord with EU standards. Yet even the electronics industry can agree that a federal program is best for implementing a product take-back program. This Note proposes, therefore, that federal intervention is ultimately necessary and forthcoming. The federal government will respond to the pressure from state action below, and from international action above.

II The European Union

A The Common Market

In many ways, the European Union can be described as a federalist system closely analogous to the United States.⁴ Within both the EU and the United States, political power is split between a national/supra- national authority and state/Member State authority. Power to govern in some areas may rest strictly in one level or the other, or the default authority may rest with states until clear reasons justifying national or supra-national intervention exist. In the EU, this latter principle is called subsidiarity. This principle, now applying to all EU activity not within the exclusive competence of the EU,⁵ was first articulated with specific Page 734reference to the environment: "The Community shall take action relating to the environment to the extent to which the objectives referred to in paragraph 1 can be attained better at the Community level than at the level of the individual Member States."⁶ Guidelines exist for determining whether Community action is "better" than state action in achieving an objective,⁷ but their generality means that ultimate determinations favoring Community action are made on a case-by-case basis.⁸ In the case of e-waste, the EU decided that Community action was better than state action in addressing its harms.

B The WEEE Directive and RoHS Directive

In 2002, the European Parliament and the Council of the EU passed the Waste Electronic and Electrical Equipment (WEEE) Directive⁹ and the Restrictions of Hazardous Substances in Electrical and Electronic Equipment (RoHS) Directive.¹⁰ As with all EU legislation, the harmonization of Member States' laws was a key impetus behind the creation of these directives.

1. The Who, What, When, Where, How

The WEEE Directive covers a wide range of products¹¹ with provisions addressing product design, collection, treatment, recovery, financing, Page 735consumer information, and penalties.¹² The product design provision directs Member States to encourage manufacturers to design and produce items in a way that furthers the life of the products and makes their recycling more feasible.¹³ The Collection Provision says that "[f]or WEEE from private households, Member States shall ensure that . . . systems are set up allowing final holders and distributors to return such waste at least free of charge" to collection facilities arranged by producers (manufacturers, sellers, and distributors).¹⁴ Specifications for e-waste siting, storage, and treatment, including which components must be removed and treated separately, are contained in Annex II and Annex III.¹⁵ Producers are further accountable for paying the costs of collecting, treating, and disposing of e-waste both for household and non-household waste, including products placed on the market before August 13, 2005.¹⁶

To assist in meeting the goals of the Directive, producers are required to make available information about the treatment of their electronic products and to include a specified symbol, a crossed-out wheeled bin, on the packaging of electronic equipment to signal to consumers that the waste must be collected separately from other waste.¹⁷ Information on the progress of the Directive also must be maintained by Member States and periodically reported to the Commission.¹⁸ States were to transpose the Directive into national law by August 13, 2004,¹⁹ and producer obligations under the national laws were to take effect by August 13, 2005.²⁰ This deadline was later pushed back for the then-fifteen Page 736members of the EU until January 1, 2006.²¹ For new Member States, the transposition deadline is twelve to twenty-four months later.²²

The RoHS Directive's central feature is a ban on the use of lead, mercury, hexavalent chromium (chromium VI), cadmium, and two brominated flame retardants-polybrominated biphenyls (PBBS) and polybrominated diphenyl ethers (PBDEs)-in electrical and electronic equipment starting in July, 2006. However, specific uses of the chemicals are exempt from the restriction (one of the biggest being the authorization of use of lead in cathode ray tubes (CRTs)), and these exemptions are to be reviewed periodically.²³ The RoHS Directive affects the same wide range of products that the WEEE Directive covers.

2. The Why

"The twin aims of the [WEEE and RoHS] Directive[s] are the prevention of electronic waste and the encouragement of reuse, recycling and recovery of waste, and the harmonization of national measures concerning end-of-life electrical and electronic equipment."²⁴ Though this Note is sympathetic to environmental concerns, it is focused with the need for harmonization.

Prior to the enactment of the WEEE and RoHS Directives, many EU countries were taking an active interest in e-waste management, including Austria, Belgium, Denmark, Finland, Germany, Italy, the Netherlands, Sweden, and the United Kingdom. Altogether, at least nine of the then-fifteen EU Member States had implemented or had intended to implement their own unique e-waste collection and recycling programs prior to enactment of the WEEE Directive.²⁵ Austria assessed fees to consumers at both ends of a product's life.²⁶ Belgium obligated manufacturers and retailers to take back white goods (major household electrical appliances such as refrigerators) and brown goods (household electrical entertainment appliances) for free.²⁷ In Denmark, local government authorities were charged with collecting and recycling electronic equipment, with costs covered through taxes or collection fees.²⁸ This arrangement stemmed from a belief that the government was Page 737best situated to prevent the export of e-waste and probable unsafe disassembly.²⁹ Germany's system featured shared responsibility. Local authorities would collect the waste, but electronic producers were responsible for its treatment and proper disposal.³⁰ Italy had a system of nationwide collection centers and recovery facilities to which consumers could bring their...