Taking back the trash: comparing European extended producer responsibility and take-back liability to U.S. environmental policy and attitudes.

• Author: Short, Megan

ABSTRACT

The European Union and many individual European countries have in recent years developed waste management schemes that require manufacturers to take back products at the end of their useful life and shoulder responsibility for their recycling or disposal. The United States currently has no such national scheme. As the generation of waste increases, the United States will likely be forced to examine the merits of such a national policy. The traditional approach to environmental liability and the individualistic culture of the United States, however, present unique obstacles to take-back mandates. The Author addresses those obstacles and possible solutions to them. The feasibility of developing such a system in the United States is also examined. The Author argues that such an environmental liability scheme could be developed in the United States, although there are many lessons to be learned from the systems used by members of the European Union.

TABLE OF CONTENTS I. INTRODUCTION II. WASTE DISPOSAL AND ENVIRONMENTAL CONTROL A. Introduction to Take-Back Laws B. Take-Back Laws in Europe 1. European Union 2. Individual States C. In Search of a National Take-Back Scheme: Waste Management in the United States III. SOCIAL AND CULTURAL ATTITUDES IN AN EPR FRAMEWORK A. A Western Cultural Divide." Europe and the United States B. Social Differences: Implications for Take-Back Laws 1. Criticisms of EPR 2. American Environmental and Social Attitudes a. Environmental Attitudes b. Implications of Social Attitudes for Environmental Problems IV. TAKE-BACK: A SOLUTION FOR THE UNITED STATES? A. Developing a Regulatory Scheme: Legislative Feasibility B. Domestic Legal Roadblocks C. Attitudes as Barriers V. RECOMMENDATIONS VI. CONCLUSION I. INTRODUCTION

In 2001, the United States alone produced more than 7.8 billion tons of trash. (1) Increased waste generation is not unique to the United States; it is a global problem that will not go away. (2) Recycling is a popular solution, but there is room for growth in the development of waste management techniques) The speed at which technological development makes products obsolete is a growing problem. (4) An estimated 60 million new computers enter the U.S. market every year. (5) New product development creates an even faster growing pile of electronic waste as old products are discarded. It is estimated that by 2007, 500 million computers will be obsolete and in need of a place for disposal. (6) As the problem of waste generation continues to grow, governments struggle to create new coping strategies.

The European Union and individual European countries have implemented extended producer responsibility legal mandates to address rapid waste generation. (7) Extended producer responsibility, also known as "take-back," requires manufacturers and sellers of products to take back from the consumer used products at the end of their useful life and to pay for their recycling and disposal. (8) The first country to adopt such a strategy was Germany. (9) Germany's policy in turn inspired the European Union to issue directives for packaging materials, waste, end-of-life automobiles, and other environmental problems, (l0) The popular European approach is to create private entities to contract with manufacturers for disposal, (11) This approach is one, however, that does not come without obstacles, including high costs. (12)

This Note explores the mandates adopted by the European Union and individual European states and examines the feasibility of their implementation in the United States. Part II outlines the current extended producer responsibility schemes in Europe and the current waste disposal system in the United States. Part III examines the societal and cultural differences that account for varying environmental attitudes in Europe and the United States, with a focus on Germany. Part IV discusses the feasibility of developing national take-back requirements in the United States by examining legislative obstacles and other barriers. Part V offers a conclusion and recommendation for the United States that builds on the strengths of the European regimes' schemes while recognizing the weaknesses of those plans.

2. WASTE DISPOSAL AND ENVIRONMENTAL CONTROL

   1. Introduction to Take-Back Laws

      In response to the growing problem of excessive waste, several countries adopted liability schemes in which manufacturers must take responsibility for their products, attempting to slow the filling of landfills and the release of hazardous substances from discarded products. (13) Such laws, known as "take-backs," are requirements imposed on manufacturers, importers, and sellers to take back their products from end users at the end of the product's useful life. (14) One catalyst to the emergence of take-backs is the growing support for "producer responsibility." (15) This idea of extended producer responsibility (EPR) focuses on creating producer responsibility after the product is sold, when manufacturers traditionally cease to be responsible for their products, (16) The greatest take-back activity has been in Europe, where government-sponsored take-back initiatives arose from concerns about scarce landfill space and potentially hazardous substances in component parts. (17) The United States, in contrast, imposes no take-back requirements at the federal level, partly because the U.S. Environmental Protection Agency (EPA) lacks the authority to promulgate them. (18)

      Take-backs challenge the traditional view that "a product's price reflects the producer's costs of manufacture, distribution, and marketing plus a profit margin." (19) Normally, once the product is sold, the manufacturer no longer has responsibility for its ultimate disposal. (20) Therefore, all costs of waste disposal are paid by the consumer, typically through municipal taxes. (21) Manufacturers have had little incentive to reduce the wastes associated with product disposal because they have not paid these costs. (22)

      The main goal of EPR is to reduce pollution that results from a product's disposal. (23) The other goals of EPR take-back laws, however, have much more long-term significance. (24) James Salzman asserts that the additional goals of EPR include (1) encouraging companies to design products for reuse, recyclability, and materials reduction; (2) correcting market signals to the consumer by incorporating waste management costs into the product's price; and (3) promoting innovation in recycling technology. (25) Take-backs make these goals a reality by creating incentives for companies to redesign their products, incorporating safer materials and making products easier to recycle and reuse. (26)

      EPR is an extension of the "polluter pays" principle, which traditionally justifies charging producers for all the pollution caused by production.(27) Under take-back laws, when the manufacturer places a product on the market, that manufacturer must also pay for its eventual disposal. (28) Under this system, consumers still pay for the waste management of the packaging, but the increased costs are paid in the form of higher prices rather than in taxes. (29) Under EPR, producers in effect accept responsibility when they design products to minimize their environmental impact, and they accept legal, physical, and economic responsibility for the environmental effects of their products, (30) "In terms of legal doctrine, take-back laws may be loosely described as transforming the manufacturer's legal relationship with its product by imposing a future property interest which vests upon disposal." (31)

   2. Take-Back Laws in Europe

      1. European Union

         The European Union (EU) recently adopted a directive on waste electrical and electronic equipment (WEEE). (32) The purpose of this directive is to prevent the production of WEEE and also to encourage reuse and recycling of such waste, (33) The directive requires Member States to encourage design and production methods that take into account the later dismantling and recovery of their products, (34) The WEEE directive sets a goal that by 2005 a system will be in place to allow final holders of a product to return waste free of charge, with distributors taking responsibility for disposal of the waste. (35) Member States must also ensure that users of electrical equipment have access to information about the requirement not to dispose of WEEE and the collection systems available. (36)

         The EU also adopted a directive restricting the use of certain hazardous substances in electrical and electronic equipment. (37) One objective of this directive is to contribute to the environmentally sound recovery and disposal of WEEE. (38) This directive ensures that after July 1, 2006, new electrical and electronic equipment put on the market will not contain hazardous materials. (39)

         The EU also created a liability regime for packaging. The European Packaging Directive came into force in 1994, setting boundary conditions and objectives that must be transposed into national legislation. (40) Under the Packaging Directive, each Member State must develop a system to take-back and recover or recycle used packaging. (41) The packaging waste may be incinerated--facilitating energy recovery--or recycled. (42) One goal for Member States is to collect between fifty and sixty-five percent of packaging waste and another goal is to recycle between twenty-five and forty-five percent of the total packaging material. (43) The EU has also shown concern for disposal of end-of-life vehicles. (44) The EU found that consumers discard between eight and nine million vehicles yearly in the EU. (45) Furthermore, dismantling operations often cause a significant environmental hazard, as residues from shredding contain significant quantities of hazardous substances. (46) The Directive on End of Life Vehicles establishes a certification program under which only treatment facilities with permits can issue a certificate of destruction once a...