Landmark lawsuit challenges New York City recycling law

We are poised at a turning point in the history of waste management, and the outcome of a lawsuit against New York City may confirm that we have really turned a corner -- or send us back to the bad old days.

Computer makers are challenging a municipal ordinance that requires them to collect old computers ("e-waste") from households and recycle it. This is a somewhat unusual formulation of a broader principle, called Extended Producer Responsibility (or EPR). BC happens to be the place where this new principle is most widely applied in law, so this suit could be interesting to us.

Here's what the plaintiffs in the New York suit said, according to a recent article in the magazine Recycling Today (emphasis added):

“The E-waste Program retroactively and fundamentally alters the terms of the original contract of sale for a CEE (consumer electronics equipment) between the manufacturer and the consumer (or distributor, retailer, etc., as the case may be). Prior to the enactment of the E-waste Program, a manufacturer sold the CEE for a certain price, relying on the fact that the manufacturer was permanently transferring full title and it would not be required to take title to the product again at the end of its useful life.”

The article says that the brief was jointly filed by several non-electronics manufacturing associations who said they 'are also greatly concerned that allowing the E-waste Program to take effect will encourage other jurisdictions to adopt laws that shift disposal costs historically borne by voting local taxpayers who discard consumer products onto non-voting, out-of-state or off-shore manufacturers who make them.'"

Clever lawyers!

By sticking up for aggrieved out-of-state manufacturers they are distracting the Court from the greater injustice. For the better part of a century global corporations have been dumping responsibility for disposing of their products on voting local taxpayers in local communities -- many of whom may not have purchased a computer at all.

Indeed a whole raft of legislation exists now that puts the onus on local governments to clean up after the Throw-Away Economy, spending hundreds of millions of our tax dollars dollars on incinerators and landfills.

It will be really interesting if this lawsuit finally tests whether a company can absolve itself of responsibility just by transferring ownership of a product from itself to the consumer. EPR is based in the idea of a chain of custody that starts with the brand owner and ends with the consumer -- but does NOT include the taxpaying public in the communities where the products are sold, used, and discarded.