circular economy | Environmental Law Institute

Plastics Pervade the Economy and Their Harms Are Hard to Regulate

Read more about Plastics Pervade the Economy and Their Harms Are Hard to Regulate

Author

Craig M. Pease - Former Law School Professor

Former Law School Professor

Current Issue

July-August 2024

Issue

Our modern society is built with plastics. They are ubiquitous, and can be found in every corner of the human economy. Alas, also seen everywhere is plastic waste. And the problem is not just visible trash, as with discarded plastic bags, highways strewn with broken automobile parts, and the huge oceanic trash gyres.

Indeed, worse results come from weathering, abrasion, microbial action, and sunlight breaking down discarded plastics, creating an array of potentially dangerous micro- and nanoparticles that infiltrate the ecosystem and the marine and terrestrial foodchains.

The existing evidence of the impact of microparticles on human health is concerning, as they have the greatest potential to harm our brains and fetuses growing in utero.

To address the pressing need to better manage plastic waste, EPA last year published its Draft National Strategy to Prevent Plastic Pollution. The agency proposes a circular economy to recycle and reuse plastics, thereby diverting them from landfills and the natural environment.

At first glance, a circular economy for plastics seems an eminently sensible approach to sustainability. At its core is an analogy between plastics in a human economy, and wood in a natural forest. Both are pervasive structural elements. And both have a limited life and (in theory) can be recycled and reborn.

When a tree dies, a diverse community of scavengers, including fungi, bacteria, insects, and plants, capture energy embedded in the wood, and reuse scarce naturally produced chemicals in the dead tree. These organisms enrich the soil, too, helping seeds from the expired parent sprout a yearling tree and start the cycle over again.

We might hope to design an economic system, the concept of circularity states, that affords similar recycling of plastics.

However, when wood breaks down in a natural ecosystem, the waste of one scavenger becomes the input for yet another scavenger. So the circularity analogy only goes so far, because degradation of plastic often makes the problem worse, as when a large piece of trash breaks down into dangerous micro- and nanoparticles.

As one measure of the practical challenges facing chemical engineers and toxicologists doing research that might lead to a circular economy, see the environmental engineer H. Wiesinger and colleagues' recent review paper “Deep Dive Into Plastics, Monomers, Additives, and Processing Aids.” They estimate there are over 10,000 different chemical compounds related to plastics, of which 2,400 are potentially hazardous to humans.

The pervasiveness of plastics in our consumer life is deeply connected to the dependence of the U.S. economy on fossil fuels. Indeed, the industrial processes to manufacture plastic start with oil and natural gas feedstock.

But whereas in our fossil fuel economy energy is abundant, in natural ecosystems energy, and the constituent chemicals to build living organisms, are typically quite scarce. Because of the profligate abundance in our human economy of fossil energy and everything we derive from it, economic actors have little incentive to develop innovative ways to recycle and reuse.

Because of that energy scarcity in the natural world, over literally billions of years there has been evolutionary pressure for living organisms to develop intricate ways to scavenge waste energy and waste chemicals. By contrast, the human economy has a scant century of experience innovating with the technology of oil and plastics. And we obviously have much left to learn.

Where EPA proposes in its Draft National Strategy a top-down approach to a circular economy, complete with multiple bulleted points, the recycling and reuse in natural ecosystems was all created bottom-up, through evolution by natural selection acting on individual species, to create multitudinous chemical pathways to break down waste. It is preposterous that a top-down regulatory approach could ever create the diverse chemical and economic pathways needed to effectively address the diverse chemicals and particle sizes in plastic waste.

For better or worse, the number of plastic chemicals in commerce will continue to burgeon. To better compete economically, corporations have the incentive to create ever more kinds of plastics. Moreover, because intellectual property law protects many existing plastics, other chemicals, and related processes, economic actors are forced in novel directions, thereby exacerbating the problem of too many chemical compounds and their harm to human health and the environment.

Plastics Pervade the Economy and Their Harms Are Hard to Regulate.

EPA Can Lead or Get Out of the Way

Read more about EPA Can Lead or Get Out of the Way

Author

Lynn L. Bergeson - Bergeson & Campbell, P.C.

Bergeson & Campbell, P.C.

Current Issue

May-June 2023

Issue

Parent Article

Beyond Recycling

A major task we face in achieving circularity is ensuring that policies remain nimble in addressing environmental and public health challenges. Our suite of laws and their regulatory implementation sometimes reflect an unhelpful resistance to circularity, expressed in policies that are indifferent or antithetical to an efficient transition to true resource economy.

Measures implementing the 2016 amendments of the Toxic Substances Control Act increasingly affect a broad range of commercial activities, including “processing,” a uniquely vague and broadly encompassing statutory term that can include recycling. Barriers to the mechanical reuse of certain plastic waste streams can be mitigated in TSCA’s implementation, but policymakers must also take full account of the benefits of recycling to help achieve the goals of a circular economy.

For example, recyclers that gather, grind, or physically manipulate waste plastic would not be considered chemically changing the substance, as the recycled product would retain its specific chemical identity. PET bottles, for example, may thus be collected, shredded, melted, and spun into fibers without triggering TSCA “new chemical” jeopardy.

But chemically reacting PET by depolymerizing it to convert the plastic into another substance could elicit a different TSCA regulatory result, and one less favorable to circularity. If a new chemical is generated in the process, it would of course need to be addressed under the law’s new-chemical provisions. This would invite all the challenges and marketing uncertainties associated with commercializing a new chemical. That process’s indeterminate length, often adverse commercial outcomes, and cost make the feasibility of this type of recycling potentially untenable, or at least commercially risky.

In implementing the new law, EPA must balance the benefits of recycling activities and their contribution to circularity with the potential risks posed by low levels of chemicals of concern contained in recycled feedstocks. Recent agency actions demonstrate that recycling opportunities can be diminished or eliminated entirely under certain TSCA rules unless the agency explicitly excludes recycling activities.

For example, under TSCA Section 6(h), EPA must regulate on an expedited basis certain chemicals identified as persistent, bioaccumulative, and toxic—known as PBT. In 2021, EPA issued a final rule for the chemical decaBDE, prohibiting all manufacturing, processing, and distribution in commerce of the substance and of articles containing it, with certain exclusions. The agency wisely excepted from the prohibitions processing and distribution in commerce for recycling of decaBDE-containing plastic from products or articles, and decaBDE-containing products or articles made from such recycled plastics. EPA did so based on its careful balancing of the potential harm from the expected “low levels of decaBDE” resulting from recycling and the “prohibitively expensive and complicated testing” that would result if EPA declined to exclude recycling operations.

The agency also exempted recycling operations under the PIP (3:1) rule, another PBT chemical regulated under Section 6(h). EPA has announced that it intends to revisit its 6(h) rules later this year. Commenters who opposed recycling exclusions in the last set of rules can be expected to renew their concerns. Those who favor the existing exclusions will need to voice their relevance to circularity.

This balancing will soon be called into action as EPA moves to managing the risks of chemicals that have undergone TSCA evaluation, including substances such as those in the so-called HBCD cluster that may be in certain recycled materials. Interestingly, in its HBCD evaluation, EPA found recycling to present an unreasonable risk, signaling a management approach that will not exempt recycling. Similar issues can be expected to arise, albeit not immediately, under TSCA in the context of state, municipal, and private initiatives involving PFAS in recycled plastics.

In short, EPA needs to implement TSCA in a way that optimizes its utility to achieve circularity, or at least does not work to prevent it.

Tighter Loops Through Collaboration

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Author

Carolien Van Brunschot - Circular Electronics Partnership

Circular Electronics Partnership

Current Issue

May-June 2023

Issue

Parent Article

Beyond Recycling

It is common for organizations to start their circular transition journey with a focus on recycling. Recycling is a natural first step to reduce material wasted through burning or landfilling. It limits virgin resource extraction by reusing materials already in circulation. One can have the impression that as long as design allows products to be taken apart by recyclers, business can continue to run without too much interference. However, considering the purpose of circularizing industries, it soon becomes clear that recycling is really just the beginning.

Closing the loop of a product lifecycle is a good start; however, it is important to consider the size of the loop as well. For the electronics industry, for example, we could look at two key impact areas: a reduction in carbon embedded within products, and risk reduction concerning the availability of scarce materials.

Both these impacts make a case for the need to look further than recycling alone. Given the accumulated carbon footprint of processing and manufacturing an electronics product, cutting emissions from mining and other extraction is a big win. However, the wider the closed loop, the more reprocessing is required, the more value chain players are involved, and more logistics will be included in the process, all adding back to the carbon footprint.

Circularity in electronics is a means to preserve scarce minerals that are essential to the global energy transition. Recycling can provide an alternative sourcing channel for certain valuable metals like gold and copper. But many critical rare earths are still difficult to extract from the alloys in which they were used in their original product composition. And until separation technologies become available at scale, recovery rates will likely be less than one percent.

If we truly want to reduce our product carbon footprint and preserve critical minerals, we need to look at a form of circularity with the tightest possible loop. This requires remanufacturing and refurbishing, in which product parts and working components can be reused. The last can be seen as optimal since embedded carbon can be written off over a longer period. Additionally, this approach enables products to benefit from the intended composition of materials, such as difficult to recycle alloys containing valuable rare earths, for as long as possible.

A business model that includes extended lifetime for products through repair, maintenance, and upgrades asks for very different competencies from an organization compared to the more traditional linear sales model. While in the past companies focused mainly on the sales transaction, now they need to take a longer-term perspective and guide users throughout the product lifecycle. This involves directing customers toward the appropriate services and upgrade opportunities, as well as providing clear instructions for end-of-life disposal and ensuring products are collected and recovered.

This means a complete overhaul in how brands incorporate circularity through the full value proposition, where services drive value creation, thereby decoupling economic returns from material consumption. They will need to understand much more about the full lifecycle of their products and strategically plan how these will find their way back into the economy at end of life. It will not only change their relationship to the consumer, but also to the rest of the value chain.

For some of the world’s biggest tech giants, this circular approach to serving their customers is a massive shift at the heart of their operations. Fortunately this does not necessarily mean they need to vertically integrate to include all these additional business competencies. Many organizations already offer circular services across the product lifecycle.

Turning to this part of the industry to scale circular business models presents a significant opportunity. Understanding the landscape of circular service providers, and how they can be integrated effectively into the value proposition, could provide the next competitive edge. Cross value chain collaboration therefore is essential to the transformation to a circular electronics industry that looks beyond recycling.

Beyond Recycling

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Author

Kathleen Sellers - ERM

Conor Grieve - ERM

ERM

Current Issue

May-June 2023

Issue

Partial recycling sign in the center of crushed plastic or metal

These stark words from the United Nations imply an economic and environmental catastrophe to come: “Consumption and production drive the global economy, but also wreak havoc on planetary health through the unsustainable use of natural resources. The global material footprint is increasing faster than population growth and economic output.” To address this problem, the authors of the 2020 UN Sustainable Development Goals declare: “Urgent action is needed to decrease our reliance on raw materials and increase recycling and ‘circular economy’ approaches to reduce environmental pressure and impact.” Moving toward a circular economy—one founded on the precepts of designing out waste and pollution, on keeping products and materials in use, and restoring natural systems—could limit the devastation of planetary health. But that is not enough. Even with 100 percent recycling, humanity’s consumption of virgin resources will continue to sustain ever increasing demand for products and services, including basics like energy. Without reducing consumption, scarcity will always loom for many key supports of our economy.

Some scientists believe that our efforts may come too late. A 2017 article in ACS Sustainable Chemistry & Engineering provides an analysis of mineral reserves which, for example, indicates that 10 essential metals are “very scarce” (less than 20 years of supply) and 11 are “scarce” (up to 40 years). These findings show that little time remains to change resource demand. Another research team, writing in Science, determined that pollution from chemicals and plastics already exceeds safe global operating levels for human societies to develop and thrive.

Activists outraged over images of ocean debris fields call for laws to ban single-use plastics and thus drive circularity. Many companies and individuals strive to make greener choices and to recycle packaging and other materials. There is much to praise in such behavior. But we argue that business and society must move beyond recycling to change consumption patterns if policymakers want to build a sustainable society within planetary boundaries.

We propose a resource efficiency approach to circular economy aspirations, enabled by rethinking value chains and increased transparency and traceability. To do so, we explore examples of innovation in circular business models and partnerships, highlighting opportunities for policymakers to support private firms and society in general in moving toward resource efficiency.

Pogo’s famous observation that “we have met the enemy and he is us” still resonates more than half a century later. The essential challenge of circularity is peoples’ demand for goods and energy. The United Nations tracks demand in terms of material footprint, which grew by 17 percent between 2017 and 2020. The footprint of a person in a high-income country is more than 10 times greater than that of a person in a low-income country, based on 2015 data. These figures illustrate in a general way the growing and unequal demand for resources. To examine demand in a less abstract way, let’s look at an essential part of this footprint, clean drinking water, and the current debate about single-use plastics.

Almost everybody in the United States—around 99 percent of the population—has access to safely managed drinking water. Access to clean water is not uniform for the 1 percent who are left out. A lack of safe water correlates to rurality, poverty, indigeneity, education, and age. Bottled water can be a necessary, if stopgap, solution to unsafe or inadequate private wells or public water supplies, if it is available and affordable.

However, many people in the 99 percent with access to safe and inexpensive drinking water still chose to drink bottled water. Between 2005 and 2015, demand for bottled water grew by more than 47 percent in the United States despite the widespread availability of safe public water supplies and wells. The International Bottled Water Association explains, “A 2019 Harris Poll conducted for IBWA shows that when asked about their general opinion of bottled water as a beverage choice, 84 percent of Americans had a ‘very positive’ or ‘somewhat positive’ opinion of bottled water. . . . This poll finding is supported by the fact that bottled water is the No. 1 packaged drink in the United States for the fifth year in a row (by volume).”

The Harris Poll also found 94 percent of Americans buy bottled water, and 91 percent want it available where other drinks are sold. If bottled water is not available, the survey found that 74 percent of people said they would choose another, less healthy, packaged drink—not water from a drinking fountain or tap, even if filtered.

A study of college students in the northeastern United States concluded that purchasing bottled water tends to be a habit that reflects perceptions about the quality of bottled water versus tap water. It relates to perceptions of convenience, taste, and health factors but, in the words of the authors, “objective knowledge about the environmental impact of bottle[d] water production and consumption is, at least in the current data set, irrelevant to purchase intention.”

Contrast such purchasing decisions with the way people in the United States talk to pollsters about single-use plastics, the material commonly used to package water. In a 2021 survey, 55 percent of respondents agreed that single-use plastics should be banned as soon as possible. A second survey found that 82 percent said they are concerned about plastic pollution and its impact on the environment and our oceans; 77 percent agreed that companies need to stop producing so much single-use plastic. Eighty-one percent of respondents broadly supported both national and local or state policies that would reduce single-use plastics.

In response to such concerns, multiple states and municipalities have taken up the cause of banning single-use plastic water bottles. But such concerns about the environmental impacts have not yet translated to effective recycling. According to EPA, using 2018 data, only about 29 percent of plastic bottles are recycled in the United States.

Bottled water is not alone. It is an example of the disconnect between consumption patterns and sustainable consumption preferences. Recognizing this gap, companies offer to produce recyclable single-use options to meet consumer expectations.

It’s an instinctive response to sustainability concerns to substitute out materials considered harmful and commit to recycling. But our instincts do not always lead to substantive solutions. Recycling comes at an environmental cost: no recycling process can be completely efficient and the transport and recycling of waste uses energy and generates greenhouse gas emissions. Its success depends on numerous factors, including consumer acceptance, adequate infrastructure, and economics, and even if well adopted will still have important environmental consequences.

Continuing with the example, bottled water is commonly available in plastic containers and sometimes available in paper cartons or single-use aluminum bottles. The actions of one company illustrate the types of actions taken to make products more sustainable and some of the limits of those actions. This company positions its product as particularly sustainable because of its use of “infinitely recyclable aluminum” bottles and cans and its partnership with RePurpose Global to remove one plastic water bottle from the ocean for each bottle of its product sold. The product embodies commitments to using more sustainable materials and action to remove pollution, wrapped in a strong brand image.

Dig into the details, however, and the sustainability benefits become less clear. Its bottles comprise 69 percent recycled aluminum, according to the company web site. But these single-use containers exert a demand for virgin resources for the 31 percent missing metal. The company offers its product on a monthly subscription basis, per its FAQs, a business model with ongoing resource demand and ongoing generation of waste. While aluminum is readily recyclable, and perhaps many consumers of this brand do, most consumers in the United States do not. According to EPA, only 17 percent of aluminum cans in municipal solid waste were recycled in 2018 (the most recent year for which data are available), well below the more than 50 percent figure the company cites.

Looking beyond the container, bottling water typically removes water from one watershed for transport around the country or the world. This company sources water from Bozeman, Montana, Montebello, California, and Norfolk, Nebraska. All three of these areas are under water stress. Bozeman is semi-arid and drought prone, receiving only an average of 16 inches of precipitation annually. The water department of the city of Montebello has posted an urgent warning: “The current drought conditions are SERIOUS and the need to reduce water use is REAL.” A meteorologist from the National Weather Service recently observed, “About 75 percent of Nebraska is in drought, with Norfolk this week extending its claim to its driest year on record.” Removing water from scarcity areas to send to other regions, many potentially rich in water, is not a sustainable solution. At the end of this aluminum product’s life, tying recovery of ocean plastics to the purchase of a single-use product links restoration of natural systems to consumption. At its heart, this link is not sustainable. We cannot consume our way out of pollution.

Finally, the price of this product puts it out of reach for most consumers and thereby limits the scale and impact of the circularity solution. Twelve 16-ounce cans of water from this company currently cost $27.99, or $0.15 per fluid ounce. In contrast, water in plastic bottles can cost $0.04 per fluid ounce, and consumers pay on average $0.00005 per fluid ounce from public water supplies (2019 data).

The point of this analysis is not to single out one brand, but to illustrate how well-intentioned efforts at circularity can have consequences that limit their benefits. The resource demands of “sustainable” solutions can still have significant impacts, and recycling may be limited in practice. And the scale of circularity efforts may not yet be large enough to materially address environmental problems. Changing our perspectives on consumption and circularity is essential to changing the impact we have as a species.

The low rate of recycling results from numerous factors: confusion over what can be recycled; lack of infrastructure; contamination of materials; and raw economics. EPA aims to improve the recycling rate to 50 percent by 2030 through a five-pronged strategy published in late 2021 aimed at increasing collection, reducing material contamination, enhancing circular policy, improving data collection, and developing secondary markets. The agency also calls for “designing products to be sustainable, reducing the creation of waste with local communities in mind, maximizing reduce, reuse, and recycle, and minimizing the impacts of waste management.” In doing so, EPA has acknowledged that recycling is only part of the solution.

Circular economy conversations too often center in the narrow recycling discourse and ignore the breadth of options available in the marketplace. Broadening circular economy aspirations beyond recycling to focus on resource efficiency better aligns with academic and thought leader perspectives calling for a focus on reducing waste rather than cycling it through input-intensive processes. Beyond the switch in mind-set to resource efficiency, companies and governments must rethink their value chains to fully utilize inputs through innovation, of course, but also less obviously through partnerships with other businesses, with governments, and with NGOs. Finally, transparency and traceability will enable these new value chains by breaking down information asymmetries critical to maximizing recycled material use in new products.

Through centering the circular economy on resource efficiency, consumers, companies, and agencies can address the fundamental issue of consumption habits, the key barrier to sustainability. Minimizing or stopping waste production requires the full use of resources, including what are traditionally defined as byproducts. To reduce waste, consumers, governments, and firms should focus on achieving maximum utility while minimizing the use of finite resources. While recycling may often contribute, a circular economy will move beyond recycling to consider durability, reuse models, and opportunities to value waste products.

Durability may be the simplest form of increasing resource efficiency through extending the useful life of products, preventing the need for additional processing and incentivizing reuse. A ceramic mug or metal bottle commonly found in many homes is a more durable product than a plastic water bottle, while offering more potential uses. While a simple example, this paradigm applies broadly across commonly consumed goods and most sectors. Durable models are simple yet effective in decreasing waste through extending product life.

Reuse models, inclusive of remanufacturing and recycling, rely on the restoration of end-of-life products to a state similar to—and often better than—new. Ikea is actively engaging in reinventing its business around reuse. Beginning with recycling, the vendor has changed its portfolio to achieve 60 percent of products with renewable materials and 10 percent with recycled materials. Ikea has also enabled repair models such as offering free fasteners to consumers to help them extend the useful life of their furniture. Finally, Ikea’s sell-back program explores re-use as a business model by providing store credit for returning built furniture to be remarketed to consumers. While these programs are in their infancy and may not yet have a large impact, the exploration of these three models demonstrates how business can restructure around re-use to support customers in avoiding waste—while generating new lines of revenue and higher quality of service.

Beyond reuse models, full use models aim to utilize all input materials. A full use model aims to value materials traditionally treated as waste to maximize production from raw materials—or, put simply, would aim to maximize use of raw materials while minimizing waste. Harsco Environmental has transitioned its business toward helping aluminum and steel producers maximize usage from waste, becoming an environmental services company. Harsco’s solutions aim to move traditional waste streams into useful materials. For example, the firm sells steel slag, a waste product traditionally discarded, to CarbiCrete, which manufactures cement blocks from the slag with lower cost (20 percent), better performance (30 percent) and negative CO2 emissions. Models and partnerships such as Harsco and CarbiCrete’s are essential to achieving the circular economy by fully using materials regarded as waste to displace virgin materials.

Indeed, these examples show that finding new partnerships is critical to making circular business models work. These changing value chains enable resource efficiency through providing new pathways to bring goods to and from consumers and the market or unlock opportunities to value waste. While individual companies can seek out these partnerships, this is often done through industry engagement including a breadth of initiatives such as Global Plastic Action Partnership, Circular Electronics Partnership, Global Battery Alliance, and many others.

As an example, the plastic partnership “brings together policymakers, businesses, civil society advocates and entrepreneurs to align on a common approach for addressing plastic pollution and waste in the most effective and sustainable manner.” While often perceived as superficial, industry associations can foster collaboration between different stakeholders critical to enabling broad action across the sector by enabling the exchange of information. They can also catalyze action. Since 2010, the Ellen MacArthur Foundation has developed resources for companies to adopt circular practices—cultivating a network of industry leaders including BlackRock, Ikea, Nestle, Coca Cola, and Unilever. While often intangible, these relationships can catalyze action and develop partnerships across industries.

Companies must be innovative on their own to find uncommon partners aimed at pursuing circular initiatives. These associations often center on repurposing one party’s waste to become an input for an unlikely industry. Timberland has partnered with tire manufacturer Omni United to recycle used tires into footwear soles containing 35 percent recycled rubber. Heineken, a brewer, uses a local sawmill’s waste heat to displace 40 percent of its needs. Both Timberland and Heineken demonstrate how uncommon partnerships across industry can foster new value chains to maximize resource efficiency. These partnerships are enabled through information sharing around what is considered to be waste and center on the needs of parties to generate mutually beneficial solutions.

Achieving a circular economy will rest in capitalistic incentive structures. In other words, and as illustrated by the example of single-use water bottles, can a company bring products to market such that a consumer values them more than their substitutes? Doing so requires traceability and transparency to break down information asymmetries that can create skepticism for consumers on the overall credentials of a product and limit buyers’ willingness to pay premiums for products aligned with their values. Breaking down asymmetry may address issues of stated versus revealed preferences by increasing consumer confidence they can achieve their choices. For example, consumers state they value longevity and durability but their purchasing decisions are often misaligned with these preferences. To counter this tendency, firms can leverage technology to demonstrate product credentials.

Rio Tinto, a global mining company, is leveraging internet blockchain technology with its START program to demonstrate the environmental intensity of their products. Data from each major event in the aluminum lifespan are stored in blocks, which are connected in a chronological chain. Each block receives a time stamp, verifying information and providing traceability and provenance on aluminum from mine to market. START has enabled partnerships with Ford, Volvo, and other auto manufacturers, circumventing metal exchanges and generating value for all parties. Volvo president and CEO Martin Lundstedt specifically called out the value chain opportunity linking material sourcing to solutions provided to customers. Identifying clear product credentials has broad applicability to circular opportunities and should aid in the valorization of end-of-life aluminum products produced under this program.

Substantial waste reduction can require traceability over generations. Material passports are an intervention aimed at addressing multi-generational transparency covering the full asset life cycle of a composite building—recognizing that materials can be used beyond the first structure’s endpoint. This intervention has a long life and its infancy limits analysis of its impact. Despite this, Metabolic, a circular economy thought leader, demonstrated in Amsterdam 2.6 million tonnes of building materials are released each year through renovation and demolition within the city, with a value of €688 million. The Building As Materials Banks, a 15 partner collaboration in Europe, is piloting material passports. Findings from these initiatives, among others, demonstrate that the increased transparency and traceability through material passports support sustainability objectives through enhanced material recovery—but require refinement before broad adoption.

As illustrated by the examples above, recycling is just a first step in re-imagining progress toward a circular economy. We must rethink consumption, from consumer buying patterns to resource efficiency. These advances will require fresh perspectives, new collaboration avenues, and traceability throughout value chains. Fundamentally, these solutions demand that we change the way we perceive, utilize, and value the material resources in our environment, and shift away from the idea of waste as an acceptable outcome.

Herein lies the solution to the initial question of how we can take action to reduce waste. Recycling models have been demonstrated to be ineffective in many instances when balanced with how consumption occurs. Moving beyond recycling to aim for zero waste through resource efficiency is essential for sustainable consumption. But how can policymakers and businesses support resource efficiency?

The answers to complex challenges of resource scarcity and environmental pollution are not as simple as, say, banning single-use plastic water bottles. Current regulations require accuracy in sustainable product claims. Policies to support more thoughtful choices—in the words of an economist, to integrate the cost of externalities—will achieve more good than simple product bans. In doing so, governments fulfill their role of maximizing societal good through helping consumers make informed choices.

The government, however, does not have all the solutions we need to these increasingly complex problems. Innovators are showing how to make products that support those claims: through designs that minimize waste; partnerships that enable creative synergies and break down market barriers; and material transparency and traceability. Policymakers can create space for innovators through funding programs, industry-based initiatives, and other forms of support, enabling a new generation of circular solutions.

In the words of Aldo Leopold, “The hope of the future lies not in curbing the influence of human occupancy—it is already too late for that—but in creating a better understanding of the extent of that influence and a new ethic for its governance.” We have that opportunity now, to go beyond aspirations to make practical progress toward a more circular economy. TEF

CROSS-EXAMINATION While there are constraints, there are also solutions to meet the circular economy’s challenging aspirations. Going further, business and humanity as a whole must change consumption patterns to build a sustainable society within planetary boundaries.

A Convention That Is Perpetually Reborn

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Author

Rolph Payet - Basel, Rotterdam, and Stockholm Conventions

Basel, Rotterdam, and Stockholm Conventions

Current Issue

September-October 2021

Issue

Parent Article

The Circular Economy Runs Through Basel

Multilateral environmental agreements have a tremendous capacity to adapt to new challenges. We have seen it with the Montreal ozone protocol, now tackling one of the most threatening greenhouse gasses. And I have witnessed it since I joined the secretariat of the Basel Convention in 2014. Why is that?

For one, we are facing an issue that is here to stay. Wastes are inevitable byproducts of our unsustainable production and consumption patterns. Although waste management is increasingly on people’s minds, hazardous waste has only increased over time. But the good news is that the Basel Convention has a lot to offer to protect human health and the environment from the negative impacts of hazardous waste. These impacts result from biomedical and healthcare wastes and other wastes that the international community has unanimously agreed require special consideration. Plastic wastes that cannot be easily recycled are a recent example.

At the heart of the convention is a strict control — not a ban — of transboundary movements of hazardous wastes and other wastes. In a nutshell, only parties with the capacity and willingness to manage such wastes in an environmentally sound manner should receive such wastes, and it is up to each party to take its own informed decision as to whether to accept or not the wastes, and under what conditions.

If I take as an example the Plastic Waste Amendments adopted in 2019, all plastic waste and mixtures of plastic waste generated by parties, with a few exceptions, are now subject to the prior informed consent procedure, unless they are destined for recycling in an environmentally sound manner and are almost free from contamination and other types of wastes. The procedure ensures that each destination country for potential exports of plastic waste is alerted to such shipments and can accept (with or without conditions) or refuse them.

By promoting responsibility and traceability, this creates the necessary conditions for the global trade in plastics waste to become more transparent and better regulated. It also provides a powerful incentive for the private sector, governments, and other stakeholders to strengthen capacities for recycling and where possible reuse, therefore contributing to a circular economy. Moreover, it will help create jobs and economic opportunities, not least by incentivizing innovation, such as in the design of alternatives to plastics and the phaseout of toxic additives.

Another key to the success of the Basel Convention is the longstanding practice of parties who engage at the global level with a broad range of stakeholders to address the minimization, trade control, and environmentally sound management of critical waste streams. Begun in 2002 with the Mobile Phone Partnership Initiative, multistakeholder platforms have since been established to tackle computing equipment, household waste, and plastic waste. These partnerships allow participation on equal footing by civil society, industry, academia, non-party states such as the United States, and other entities whose voices will shape and whose actions will drive required changes.

On the heels of the Plastic Waste Amendments, three new amendment proposals will be considered by the Conference of the Parties in 2022. The proposal by the Russian Federation is to set a 30-day period for the state of import to review and reply to a proposed transboundary movement.

The two other amendment proposals were specifically put forward with the objective of contributing to a circular economy, among other objectives. The proposal by the European Union focuses on the waste versus non-waste issue and thus aims to revamp Annex IV. The proposal by Ghana and Switzerland aims at ensuring that all e-waste moved across borders, be it characterized as hazardous or not, will be subject to the prior informed consent procedure and directed to environmentally sound management with state-of-the-art technology.

With new challenges come new opportunities. The Basel Convention continues to stand the test of time and to reinvent itself as the only global legally binding framework shaping the future of waste management.

Reimagining the Future

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Author

John Pendergrass - Environmental Law Institute

LeRoy Paddock - George Washington University Law School

Environmental Law Institute

George Washington University Law School

Current Issue

July-August 2021

Issue

WE ARE now into our second half-century of environmental and natural resources law. President Nixon signed the National Environmental Policy Act on New Year’s Day 1970, making it a convenient marker for the birth of modern environmental protection. NEPA has been called the Magna Carta of environmental law, and it heralded a new era of federal legislation, including the Clean Air Act later that year and a whole roster of laws to follow. The federal acts, along with complementary state environmental statutes, have substantially reduced pollution, resulting in cleaner air, water, and soils. And species like the brown pelican and bald eagle have been brought back from the brink.

While critical progress has been made, significant gaps in environmental laws remain if the country is to achieve a more sustainable economy. Understanding that, the authors of this article convened a diverse group of leading environmental law experts to consider how the field might need to evolve to meet current challenges and those expected over the next decades. We characterize this effort as “Reimagining Environmental Law.” In many ways, it means as well reimagining the future.

Toward that end, ELI and George Washington University Law School convened two dialogues, first at the Wingspread Conference Center in Racine, Wisconsin, in March 2019, and second at Airlie House Conference Center in Warrenton, Virginia, in November 2019. Both centers have been settings for environmental conferences for decades, with Airlie House hosting a conference in September 1969 that recommended the creation of ELI. (Information about the meetings and the attendees can be found at https://www.eli.org/environmental-governance/reimagining-environmental-law.) This article reflects the discussions at Wingspread and Airlie House, subsequent discussions with participants, and research conducted by ELI and GW Law.

In consultation with our experts, the authors concluded that among the key challenges remaining for environmental law are climate change and decarbonization, nonpoint sources of pollution, materials conservation and reuse, and ecosystem degradation and biodiversity loss. In addition, environmental justice presents both an area of needed focus alone as well as attention in cutting across all the other challenges.

The climate change problem is well-known and well-documented. The participants saw the major challenge for environmental law as finding a way to support dramatic decarbonization of the economy to avoid potentially catastrophic impact of warming and supporting needed adaptation to change. While the pathways for a transition to a low-carbon economy are known, reaching the goal of 80 percent emissions reduction by 2050 will require legal changes at all levels of government, as well as accompanying economic, political, and social changes.

Essential to the transformation needed is an economy-wide price on carbon to provide the economic incentives to make the shifts necessary to reach zero emissions. This means imposing a direct cost on each ton of greenhouse gas emitted. To accomplish this, policymakers must create a system at the national level to achieve the necessary economy-wide shifts. The participants did not express a clear preference for a tax or a trading system that caps emissions from GHG sources, though an internationally agreed system would be preferable. Any such pricing or trading system will also need to mitigate the disproportionate effect it will have on those with lower incomes, due to the higher costs of fossil fuels coupled with higher proportions of income spent on energy. It likely will also require regulatory measures to assure that environmental justice communities do not continue to disproportionately bear the risks associated with co-pollutants, like sulfur dioxide and mercury.

Given the decades-long effort to place a price on carbon and the urgency, immediate action is needed using the tools already available to reduce GHG emissions. The nation will need to address this issue across the economy through a comprehensive approach like those identified in ELI Press’s Legal Pathways for Deep Decarbonization book, which lists more than a thousand recommendations for legal instruments covering all forms of GHGs and how they are generated and released.

We also need a comprehensive and just policy for adapting to the risks — and impacts — of climate change and for helping communities become resilient. This will require an appropriate model for assessing risk. Decisions must be based on the possibility of the uncertain but potentially massive catastrophic outcomes related to natural disasters, sea-level rise, drought, and biodiversity loss. Many of these processes will require legal tools, like the model laws being produced by volunteer attorneys based on the recommendations in Legal Pathways, but others will require public investment such as transit projects, and in making buildings safer, healthier, and more energy efficient. Electrifying and investing in grid updates will also be essential in this effort, creating a more robust, resilient, and efficient network. Government agencies need to plan for how they will deliver essential services amidst climate disruptions, and how they will coordinate with partners at other levels of government. In addition to significant adaptation actions, the law must account for the liabilities associated with unintended consequences of adaptation measures.

Federal, state, local, and tribal governments need to remove subsidies, including tax breaks and other incentives, for fossil fuels and carbon-intensive industries. These governments will also need to reduce or remove regulatory barriers related to decarbonization of the economy while promoting social equity at every stage and level.

Government policies are needed to provide incentives for innovation and investment toward a carbon-free future. This will be particularly important in the absence of a price on carbon to promote development of the necessary technologies. Means to remove or sequester carbon from the atmosphere may be necessary if mitigation efforts do not advance at a sufficient pace.

An effective climate governance regime will require the engagement of the private sector in a multi-tiered system with distributed roles and accountability mechanisms. The regime must capitalize on and encourage private-sector initiatives to meet climate change goals. This can include supply chain systems that rely on a variety of approaches, including certification, auditing, labeling, and reporting programs enforced through contracts.

An equity lens will be critical in designing these polices to ensure that affected and especially vulnerable communities are meaningfully involved in designing and implementing these measures. If policies are designed to protect against the greatest potential risk, in many cases this will result in just outcomes. An updated and enhanced conception of the duty of care in both government and the private sector will help to facilitate this.

THE nation has made major strides in controlling water pollution from point sources. But many of the sources of impairment to water quality are from nonpoint sources — runoff and discharges from areas of land and operations that are not subject to direct federal regulation under the 1972 Clean Water Act. Even though these uncontrolled sources of pollution were recognized in the statute, they were not regulated because of concerns with federal legislative intrusion on state and local land use prerogatives and solicitude for such industries as agriculture, forestry, and land development.

The Wingspread and Airlie House participants preferred a more watershed-health-focused system over the status quo, which concentrates permit-by-permit on individual sources and on effluent limits on pollutant discharges. An alternative future could be far more focused on land quality and water quality results.

Given the major contribution of diffuse sources to the remaining water pollution problems, a new sense of urgency is needed for dealing with it. One way to accomplish this result could be to recharacterize these sources as “uncontrolled pollution” rather than using the innocuous term nonpoint pollution. The public and institutional motivation necessary to support advancement in law needs to be defined as achieving better environmental and public health outcomes — not controlling nonpoint sources.

State regulators should create a new structural framework for dealing with uncontrolled pollution. Simply relying on the current state water quality and waste load allocation framework has not proven effective. This new framework should capture sectors that have previously escaped requirements to reduce uncontrolled pollution. It should also focus on watersheds with major, recurrent pollution threatening public health and welfare.

Legislators can also consider funding and relying on big data, and making it publicly accessible. A great deal of data exists on water quality and more will become available as monitoring technology advances and is used by citizens. This will make it possible to define and track progress toward watershed outcomes. Sharing of data on public platforms and integration of ecological information with water quality, discharge data, geo-siting of best management practices, remote sensing, and biological sampling should be encouraged and supported.

At the federal level, officials should provide key actors with the power to create change by matching the best tool to the source of impairment. Policymakers should inventory effective regulatory and non-regulatory approaches and target these to sectors, watersheds, and problems where they have been proven. EPA or others should construct a database of tools used by the states, federal programs, the private sector, and others, and determine how these can be applied to different forms of uncontrolled pollution in different types of watersheds and settings. This resource could further be backed by supporting and funding integrated water management planning, and making funding available for implementation of the tools.

At both levels of government, policymakers should link federal and state procurement to effective management of uncontrolled pollution in the supply chain. This approach recognizes that government funding is substantial in the acquisition of food and fiber, materials, energy, and development. The reimagined approach would expressly provide for disclosures and certifications and perhaps pollution controls as conditions related to receiving funds.

All agencies at the national level need to require that federally funded land and water and development projects, and all authorized activities on federal lands, must result in net water quality improvements — or at least restoration to no net loss of water quality where there is no opportunity to achieve a net improvement.

THE European Union in its Circular Economy Plan noted, “There is only one planet Earth, yet by 2050, the world will be consuming as if there were three.” According to the United Nations, “In 2017, worldwide material consumption reached 92.1 billion tons . . . a 254 percent increase from 27 billion in 1970, with the rate of extraction accelerating every year since 2000. This reflects the increased demand for natural resources that has defined the past decades, resulting in undue burden on environmental resources.”

The United Nations’ Sustainable Development Goal 12 deals with production and consumption and notes that achieving its goal requires urgent reduction of the world’s “ecological footprint by changing the way we produce and consume goods and resources.” SDG 12 points out that “efficient management of our shared natural resources, and the way we dispose of toxic waste and pollutants, are important targets to achieve this goal. Encouraging industries, businesses, and consumers to recycle and reduce waste is equally as important.” Materials consumption is particularly challenging in the United States. In 2017 U.S. per capita materials consumption, including fuels, was 42 percent higher than Europe’s. Despite the increasingly clear adverse impacts of unsustainable materials use, the issue has received relatively little attention in U.S. environmental law.

The Wingspread and Airlie House participants built on work by the leading advocates of the circular economy, the World Resources Institute and the Ellen McArthur Foundation. The participants reimagined materials conservation and use to include a number of elements. With growing corporate, government, and nongovernment interest in the idea of a circular economy, the participants thought now is a good time to convene a national dialogue to discuss how to move to such a system in the United States.

Extended producer responsibility, or EPR, at the national level would create a level playing field across the country. A national EPR for electronics waste would help reduce environmental impacts and could make it easier for businesses to set up systems.

A national GHG policy that establishes a price on carbon would be important beyond just climate change by helping drive product redesign and reductions in materials use. A price on carbon could drive business innovation by providing a financial incentive to look carefully at energy inputs needed to extract new resources and manufacture and transport products, and to find ways to reuse them.

Federal procurement rules could be redesigned so that criteria favor products and services that are consistent with a circular economy. Further, as part of the economic recovery effort, the federal government is likely to spend a great deal on infrastructure. As a result, the new administration can have a major impact on responsible production and consumption by taking materials conservation and circular economy principles into account in procurement, perhaps through executive orders that build on available authority. Such changes could model desired behavior for state governments, universities, and other large procuring organizations.

Resource Conservation and Recovery Act regulations could be revised to reflect the circular economy hierarchy, which goes beyond the traditional reduce, reuse, recycle paradigm to include preventing the use of resources in the first instance, encouraging repairing and refurbishing, and supporting remanufacturing and repurposing. Model legislation could be developed for states to adopt this new circular economy waste hierarchy.

Materials conservation could be added as a factor to be considered in NEPA analyses. The White House Council on Environmental Quality could contribute to responsible production and consumption by providing guidance to agencies on how to consider materials use and conservation in environmental impact review.

Policymakers can explore the possibility of “fate labelling” for consumer products, so that purchasers can make more informed decisions. This could be done using QR codes or through systems in use or planned in the European Union.

HEALTHY populations cannot exist without healthy ecosystems. Driven primarily by anthropogenic activities, destroyed and degraded ecosystems threaten critical resources in significant and varied ways. Land, ocean, and freshwater systems are all affected. While legal and policy efforts have attempted to address the problem through species- or resource-specific mechanisms within geopolitical borders, the lack of coordinated efforts built around ecosystem-based solutions has meant the problem continues relatively unchecked. Without humanity changing current production and consumption patterns, along with precipitous population growth and unsustainable practices, trends will continue to worsen.

Healthy habitats provide untold benefits, sometimes called ecosystem services, which must be adequately preserved. Responses to these challenges must be direct and swift to avert the most significant impacts of development.

At least eighty countries have adopted policies to help ensure any impacts to biodiversity or ecosystem services from development projects are offset by mitigation, an approach known as “no net loss.” One important goal of the no-net-loss method is to make sure any populations affected by the development project and associated mitigation are not left worse off, but are ideally better off after the plans are completed.

In the United States, no federal statute focuses exclusively or directly on mitigating ecosystem degradation. Generally, domestic environmental laws focus on addressing a single issue rather than on ecosystems comprehensively. Unfortunately, these policies often do not account for the complex and interdependent nature of ecosystems. Moreover, these issues are typically managed based on short-term goals and primarily within distinct political and jurisdictional boundaries that do not necessarily reflect the scope of targeted resources. Even when governmental bodies work together on a project or program, their mandate and funding allocation falls short of long-term ecosystem restoration.

Policies at the federal, state, and local levels that emphasize no net loss of ecosystem services are needed to ensure these functions are preserved. This could be achieved by building on existing programs. An immediate action that could provide impetus to such a policy would be to revive the “Incorporating Ecosystem Services into Federal Decisionmaking” memo, issued jointly by the Office of Management and Budget, CEQ, and the White House Office of Science and Technology Policy in 2015. This memo called on “agencies to develop and institutionalize policies to promote consideration of ecosystem services . . . in planning, investments, and regulatory contexts.”

Policymakers should revise their environment and natural resources management frameworks with a goal of adopting a more holistic approach that prioritizes local ecosystem-level decisionmaking. This includes enacting federal legislation that requires no net loss of ecosystem services and encourages local and state-level ecosystem management. The framework would build on the existing approach to wetlands management but would provide expanded application and account for a wider array of natural benefits. Legislation should include provisions for grant funding for research and data collection, and for the development of multi‐stakeholder, consensus‐based ecosystem management. For example, federal actions subject to review under NEPA could shift focus from considering project impacts to ecosystem services impacts. Local and state land use decisions could build upon precedent set with mitigation banking under the Clean Water Act.

It is critical to emphasize that this approach could become a major equity concern if mismanaged. Communities must be involved so that the damages and benefits are spread justly across and within communities. This is especially true when addressing the legacy of discrimination faced by environmental justice communities and determining what damage is permissible under a no-net-loss framework. Making these decisions and processes more local provides an opportunity to protect residents from this potential concern.

Federal changes should be bolstered by efforts at the state level, including through revising or adopting state-level NEPA laws to include requiring an analysis of how a project will affect ecosystems and ecosystem services in the long term.

Policymakers at all levels should reform governance structures to complement ecological boundaries. Ecologically oriented governance will prioritize the entire habitat or watershed and more effectively integrate natural systems and environmental media to better ensure impacts are accounted for and degradation is mitigated. That reorganization will necessarily require inter- and intra-governmental cooperation at all levels — federal, state, local, and tribal. Throughout, these techniques should involve communities and incorporate traditional ecological knowledge.

To better align ecology and governance, the U.S. Fish and Wildlife Service should be given the authority to work with multiple levels of government and private entities to negotiate land use plans that protect or enhance ecosystem services. Such authority would be particularly useful when endangered species and critical habitat are at issue, providing a protective mechanism with widespread stakeholder engagement. Bringing together all parties with jurisdiction within a given ecological context with oversight by FWS may enhance cooperation and response to ecosystem management challenges.

New and existing regional governance bodies could be provided with “pre-authorization compacts” akin to water compacts and regional electricity grid agreements to address different parts of the same environmental event or phenomenon. While arguably less comprehensive than ecosystem-level management, compacts may be more feasible and can still help facilitate responsive coordination to environmental impacts.

INJUSTICE is manifest in several dimensions across the landscape of U.S. environmental law and policy, at all levels of governance, from local actions to state and federal decisionmaking. Communities of color and low-income communities often experience higher releases of pollutants, siting of undesirable land uses, and lack of access to environmental benefits and amenities. These same communities already bear a substantial health, social, and economic burden from pollutants, poorer access to healthy living spaces, effects of poverty, and inadequate access to health care. Even where pollutants and practices are similar to those experienced elsewhere, the addition of these burdens to existing health, socioeconomic, and community conditions can have greater cumulative adverse impacts on such environmental justice community residents.

At the federal level, the framework for environmental justice has been almost entirely based on executive orders and agency memoranda, rather than on enforceable laws and regulations. Environmental justice gained formal federal recognition in Executive Order 12898, “Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations,” issued by President Clinton in 1994, and still in effect today.

But there is still no focused and specific federal statutory foundation for environmental justice. EPA’s Office of Environmental Justice has identified various provisions in federal law that can be cited by federal agencies when they desire to support an EJ-related decision. OEJ also has developed EJScreen, a mapping and information tool, to assist agency decisionmakers and permit applicants in identifying communities and implementation factors where cumulative adverse impacts may occur. In the absence of legal drivers, however, this kind of tool cannot alone produce substantive change.

A number of states have enacted environmental justice legislation or adopted regulations or policy instruments to give EJ a greater role in decisionmaking. California’s CalEnviroScreen, for example, enables decisionmakers to identify environmentally burdened communities and create indices used for permitting, enforcement, and funding prioritization.

THE Wingspread and Airlie conferees recognized the need for legal processes to obtain just outcomes and not merely more accessible procedures — especially given cumulative impacts on EJ communities. They noted that EJ initiatives, in order to be effective, must be thoroughly integrated into all decisionmaking affecting the environment. It cannot simply be an add-on or check-off at the end of a decision process.

A minority of states already have constitutional rights related to the environment, but only a few of these are self-executing and enforceable by members of the public and communities. Environmental justice may be advanced by promoting adoption of such state amendments. In those states that already have only hortatory environmental amendments on the books, the approach would seek appropriate further amendment to enhance enforceability. This approach would require careful drafting of amendments to ensure that they are self-executing and hence enforceable without the need for additional state legislation. It would also need to create or recognize a public trust in the natural resources of the state, including clean air, pure water, biological resources, and publicly owned lands and resources, and state a human right to a clean and healthy environment.

Federal and state legislation that embodies important EJ procedural and outcome elements should be adopted. Such legislation can include codification of E.O. 12898 elements, including definitions of minority and low-income communities and disproportionately high and adverse impacts, as well as meaningful engagement and other provisions. The laws could require tools such as EJScreen. There could be other requirements for new development in communities overburdened by pollution to offset any projected increases in pollution loadings, with reductions in the existing pollution inventory on a 1:1 or net-reduction basis. Statutes could mandate disclosures of information by applicants or operators that will enable communities to participate in review processes and take action to protect their health and resources. They could remove legal barriers to public participation in decisions affecting EJ communities. Finally, the laws could create a private right of action for enforcement of civil rights.

For the private sector, policymakers could promote and encourage private governance and corporate commitments and accountability mechanisms for environmental justice. Companies and groups of companies and organizations can develop best practices and codes of conduct that firms integrate into their decision processes, management systems, supply chain requirements, and internal and external accountability mechanisms.

As the country embarks on the second half-century of the modern environmental law era, it is important to recognize both the successes of the past as well as the issues for which environmental law has not been as successful. The Reimagining process was designed to focus on some of the critical issues to ensure that policymakers seriously address remaining problems and inequities. We hope that when our successors look back on environmental law at 100, they will be able to identify significant progress in the areas identified by the Wingspread and Airlie House participants as critical issues. R&P

John Pendergrass is ELI’s vice president for programs and publications, and leads the Research and Policy Division. ELI Visiting Scholar LeRoy Paddock is distinguished professorial lecturer in environmental law at George Washington University Law School.

———

The authors thank all the Wingspread and Airlie House participants, who are the true authors of this article, and James McElfish, Sandra Nichols Thiam, and Jarryd Page, who drafted the white papers that were excerpted here.

ELI POLICY BRIEF No. 17 Over the next 50 years, policymakers need to fill in significant gaps in environmental and resource law to achieve a sustainable economy. That means addressing climate change, polluted runoff, materials reuse, ecological degradation, and environmental justice.

‘The Community,’ Equity, and Justice

Read more about ‘The Community,’ Equity, and Justice

Author

Stephen R. Dujack - Environmental Law Institute

Akielly Hu - Environmental Law Institute

Environmental Law Institute

Current Issue

May-June 2021

Issue

The past year has seen the emergence of the community as a key phrase in the national conversation. This is a result of the impact by the Movement for Black Lives and related movements among Latinos, Native Americans, and Asian Americans, each of which brings to attention the aspirations, along with the needs and grievances, of a group.

At the same time and not coincidentally, the term environmental justice has become part of the nation’s lexicon. This is the immediate result of a several new executive orders. But it is more importantly the result of decades of work by activists in communities wracked by pollution and neighborhood ruin.

The EJ movement elevates the concerns of affected areas — always called “the community” — to the level of the larger community. This has too often been limited to people of color and local interests. A welcoming sign is that engagement with the community at both levels has become an important task for both business and government. The big step in the last year is another enlargement of the scope of concern; hopefully, as should be true with racial justice generally, community is now the entire nation for this important cause.

Here one needs to celebrate the contributions of the civil rights movement’s founders. They turned the actions of a brave woman in refusing to give up her seat on a Montgomery, Alabama, bus into a local community grievance that grew into a national community movement and achieved landmark successes. A group that included a local minister, Martin Luther King Jr., along with other clergy and educators, began organizing the community. They needed to ensure that their proposed boycott would be observed, that there were cars to take workers to their jobs, that they had a bail fund. Although a suit by the NAACP officially ended the dispute, the economic effects of the community’s boycott were decisive. King thereafter spoke often of what he called “Beloved Community,” one of equality.

Notably, nowhere in the text of the Constitution or the amendments does the word “community” appear, despite invocation of “the general welfare.” Indeed, whereas the Federalists were individualists, in the estimation of historian Isaac Kramnick, it was the anti-Federalists who were “nostalgic communitarians, seeking desperately to hold onto the virtuous moral order threatened by commerce and market society.”

But that was not what the newly proposed government was all about. In Federalist No. 10, in fact, after enumerating a “manufacturing interest, a mercantile interest, a moneyed interest,” Madison goes on to state that “the regulation of these various and interfering interests forms the principal task of modern legislation.” According to Kramnick, “for Madison and the Federalists, justice effectively meant respecting private rights, especially property rights.” Indeed, in a speech to the Constitutional Convention, Madison declared that liberty depended on “divid[ing] the community” so that no group gains a majority.

But the notion of community, of sharing endeavor and goals, persisted. The 19th century was marked by utopian communities — for White people, at least. Such were the followers of Johann Georg Rapp, who founded the Harmony Society in rural Pennsylvania. The Rappites believed in a strict communism. Every day, the milk wagon went by each cabin. Into a funnel at the top of the barrel, the housewife poured from a bucket her cow’s morning production. Then she drew into the same bucket from a bung at the bottom the day’s ration to all community members. The Rappites were celibates, and put all their labor into productive manufacturing endeavors. Being successful celibates, they eventually died out. The same fate befell the Shakers, another manufacturing community in which all property was shared. Notably, both were economic success stories, speaking well for communitarian interests.

Also successful were the followers of John Humphrey Noyes, who considered themselves “Bible Communists.” They moved to western New York to set up the Oneida Community. Where the Rappites were sexless, the Oneidans had a communal marriage, based on Scripture’s injunction that “all mine thine, all thine mine.” Indeed, that applied to all property as well. In place of law or regulation, they had community sessions in which miscreants were subject to the justice of the tongue. And like the Rappites, they were industrialists. They invented the better mousetrap, the Victor Four-Ways, and made a fortune. They began the silver company that still bears their name. But eventually the children of plural marriage didn’t necessarily support it for themselves, and the community expired.

The 19th century of course also had national movements rooted in community, many of which still resonate today. Lincoln spoke often of community, and invoked the Declaration of Independence in reminding Americans that theirs was a “government of the people, by the people, and for the people,” one “dedicated to the proposition that all men are created equal.” The emancipation movement, the suffrage movement, the labor movement, the Populist movement, and religious sects all embraced the sense of sharing of aspirations emblematic of community.

Today, the Movement for Black Lives and its brethren, including the EJ movement, remind us of the validity, continuity, and evolution of communitarian goals. At the same time, they make clear the distance yet to be traveled. The American genius has been to continually expand the community to the point where the concerns of individuals are the concerns of all. No longer should where you live determine your quality of life, indeed your very lifespan. The community — acting as one — should no longer stand for it.

Notice & Comment is written by the editor and represents his views.

Be Eco-Aware or Be Square

I have a bottle of rubbing alcohol that is square instead of round. “Square bottle uses less plastic than a similarly sized round bottle,” its label proclaims. Dusting off memories of high school geometry, the reader might recall that out of all geometric shapes, spheres maximize the most volume for the least amount of surface area. So wouldn’t a round bottle, closer in shape to a sphere, use less plastic than a square one?

Over the course of an afternoon, I wrestled with a graphing calculator and ruler to set the record straight. According to my figures, a round bottle of equal height and volume uses 5.826 square inches less plastic than the square one. That’s nine postage stamps of plastic, or seven-tenths of a Post-It note. Multiply by a hundred thousand bottles, and you get an excess of plastic that would blanket three quarters of a basketball court.

An unsurprising finding, but some questions remain. Perhaps a round bottle requires thicker plastic material than a square one for structural integrity, or vice versa. Packing square bottles inside rectangular shipping containers might minimize dead space, which would increase shipping efficiency and save fuel — although it’s unclear if or how this would offset the extra plastic used.

Policymakers call this process of adding up direct and indirect environmental costs of a product a Life Cycle Analysis. LCAs assess the environmental impacts of the full life cycle of a given product, from extraction of raw materials, to production and use, to disposal or reuse. LCAs are used to analyze new renewable fuels under the Energy Independence and Security Act of 2007, and to evaluate products for Environmentally Preferred Purchasing policies for several states.

An LCA could also help us understand the environmental impacts of square vs. round bottles. However, the analysis is not without its flaws. As the economist Frank Arnold noted in this magazine, “It is impossible, practically speaking, to identify and measure all of the indirect sources of environmental problems for a given product or process.” Even if you tried, the process would end up prohibitively expensive and laborious.

Perhaps there are limits to comparing life cycle costs in the first place. After all, alternative forms of packaging can only go so far to address the issue of plastic use.

I’m reminded of a company that sells packaged water in paper cartons, promoting reduced plastic waste as part of the product’s appeal. Boxed Water Is Better, they say — and that’s also the company’s name.

Similar to our bottle of rubbing alcohol, the main advantage of these paper cartons is shipping efficiency, not reduced waste, according to one 2015 Bloomberg article. In fact, the recycling rate for the type of plastic used to make water bottles is significantly higher than the rate for cartons. At the end of the day, Boxed Water Is Better encourages consumers to feel good about a habit that contributes to enormous waste: using disposable water bottles when, in many cases, perfectly safe tap water is available.

The problem is not that we need different packaging — we need less waste and less packaging to begin with. According to EPA, packaging makes up close to thirty percent of all municipal solid waste in the United States. Shiny new alternatives like boxed water won’t make the dent they promise. We need, as Frank Arnold puts it, the simpler solution of traditional environmental regulation: “Defining a problem clearly and developing regulatory and non-regulatory mechanisms to address it.”

—Akielly Hu, Associate Editor

‘The Community,’ Equity, and Justice.

Out with the Old, in With the New

Read more about Out with the Old, in With the New

Author

Scott Fulton - Environmental Law Institute

Environmental Law Institute

Current Issue

January-February 2021

Issue

As we are moving from an aggressively deregulatory period to one in which regulation is more likely to be seen as important in advancing environmental policy, let’s take a quick look at what to anticipate from the three branches of the federal government.

We should expect a number of early actions by Team Biden, including rejoining the Paris Agreement, rescinding Trump executive orders, freezing regulatory actions pending in the Federal Register, and filing requests for stay or repositioning in litigation involving the defense of the outgoing administration’s rules. Some other actions, such as suspension of rules via the Congressional Review Act, await clarity on control of the Senate. Senate control will also be significant for purposes of those many appointments requiring confirmation, and with respect to congressional oversight of the new administration.

Looking at the Congress, the situation in the House of Representatives is settled. Despite some Republican gains, the Democrats will retain control. Regarding the Senate, what’s clear at the time of this writing is that in the next Congress the Senate will include at least 50 Republicans. The only path to Senate control for the Democrats is to win both of the run-off elections in Georgia scheduled for January 5. In that case they would have 50 seats, with Vice President Kamala Harris being the tie-breaker for purposes of determining majority for leadership and voting.

If the Republicans retain the Senate, the path for legislation supportive of Biden administration priorities obviously becomes arduous, although GOP leaders may see themselves as somewhat less constrained in the absence of a Trump White House. It bears remembering that a number of leading Senate Republicans were advocates for climate legislation in the pre-Trump days.

If the Democrats flip the two remaining Senate seats, then the dynamics around legislation would also flip. And the Congressional Review Act — used on 13 occasions in the early days of the Trump administration to invalidate Obama-era environmental rules — would come into play. But it cannot be assumed that an equally divided chamber with a vice presidential tie-breaker will provide anything approaching carte blanche legislative opportunity. Indeed, on questions like climate change, it may prove difficult to keep Democrats from fossil fuel-geared states in the voting fold for more ambitious legislative options.

In view of this, I am of the mind that regardless of what happens in the Georgia run-offs, environment-related legislation over the next two years will likely need to aim toward the middle to have hope of passage. This may mean, for example, that the most promising climate legislation will center on market-based drivers — think carbon tax and renewable energy incentives. Another pass at additional PFAS measures seems entirely possible, since White House opposition seems to have been the primary reason that House Bill 535, which would have sealed the deal on PFAS status as a hazardous substance under the Superfund law and would have compelled regulation under the Safe Drinking Water Act, did not move forward.

To the extent there is additional bandwidth for environmental legislation (a fairly big “if” in my view), other lawmaking in such a setting might include an update to the Resource Conservation and Recovery Act to align it better with circular economy thinking, pushing more secondary material away from destruction and toward beneficial reuse, or possibly to reach in the direction of growing concerns about plastics and microplastics.

Turning to the courts, much has been made of the remaking of the federal judiciary through Trump appointments and how this might influence judicial decisions on the environment. I am reminded here of the conservative judges I encountered in my early years as a litigator at the Department of Justice and the amazingly pro-environment decisions that they rendered.

While one might think that political philosophy, or the loyalty engendered by a lifetime appointment, would prove important to judicial decisionmaking, my sense is that, once on the bench, a much bigger idea sets up for most judges — the sacredness of the pursuit of justice, fulfilling the rule of law, and serving as an independent, co-equal branch of government, effectuating those exercises of executive and congressional authority that are legitimate and checking those that are not. For this reason, I am ultimately less pessimistic that the courts will prove an important fly in the environmental ointment.

Time will tell of course, and this next bit of time will be interesting for sure.

Out with the Old, in With the New.

ELI Report

Read more about ELI Report

Author

Akielly Hu - Environmental Law Institute

Environmental Law Institute

Current Issue

November-December 2020

Issue

Consensus Report Study finds courts are largely in agreement on climate science, but jurists remain reluctant to wade into politics

Climate change is a source of political controversy in the United States, and climate skepticism — or doubts about the basics of climate science — has periodically emerged in public debate. At the same time, U.S. courts in several high-profile cases, such as Juliana v. United States and City of Oakland v. BP p.l.c., while not finding for petitioners, have accepted as authoritative the science behind climate change, including its conclusions that the climate is warming, human activities are driving these changes, and that climate change will have disastrous consequences.

Given the growing number of cases involving climate change, the question remains whether these court decisions are representative of a broader trend in the judiciary or whether they are outliers. With support from the Institute’s Board of Directors, ELI commissioned a report, Climate Science in the Courts: A Review of U.S. and International Judicial Pronouncements, to analyze this question.

Authored by ELI Visiting Attorney Maria L. Banda and published in April, the report examines judicial pronouncements in climate-related proceedings since 2015, including in civil, administrative, constitutional, and criminal law matters, in the United States and in a dozen foreign jurisdictions.

The report finds vast consensus by U.S. and international courts on the causes, extent, urgency, and effects of climate change. Courts have described the science behind climate change as “substantial,” “copious,” and “overwhelming,” and have established a basic causal chain between human activities and current climate risks.

This consensus holds across different types of cases, including nuisance complaints, constitutional claims, and administrative law proceedings. It also holds true across state and federal courts in the United States and internationally.

This finding represents a major shift since early climate lawsuits, where climate skepticism was still relatively common among both judges and litigants. Courts have shifted from doubting climate science to unequivocally accepting the evidence for climate change.

One reason for this shift is the evolving nature of climate science. Federal agencies like the National Aeronautics and Space Administration, the Environmental Protection Agency, and the National Oceanic and Atmospheric Administration have generated a vast amount of climate data in recent years to underpin courts’ analyses. Courts in other countries have reviewed much of the same scientific evidence, including reports by the Intergovernmental Panel on Climate Change. In this sense, climate science has acted as a lingua franca across courts.

However, judicial consensus on climate science has not necessarily translated to judicial intervention. U.S. courts have remained generally conservative on climate action, frequently deferring to government agencies to address climate-related issues. This appears to be the case especially when it comes to constitutional or civil claims, which tend to use new legal theories or challenge threshold issues such as standing.

Judicial consensus on climate change plays an important role in shaping public understanding about climate science. Courts are among the most respected public institutions, and are often trusted to separate fact from fiction in a democratic society. Greater understanding of judicial conclusions on climate science could help move public consensus to align with this emerging judicial consensus. Finally, public awareness of how the courts analyze climate data may increase government accountability and galvanize political leaders to act on climate change.

Institute and partner work with Bozeman on water scarcity

With the support of the Turner Foundation, the Alliance for Water Efficiency and the Environmental Law Institute have worked with the City of Bozeman, Montana, to amend a local ordinance in a manner that facilitates water-neutral growth.

The recommendations by ELI and AWE were based on the Net Blue Ordinance Toolkit, a guide written by the two organizations. The Toolkit offers examples of water-offset ordinances from around the country; a Model Ordinance Worksheet that guides users through the development of a water-offset ordinance tailored to their political climate, legal framework, and environmental conditions; and an Offset Methodology Workbook that provides strategies for evaluating and selecting options to offset projected new water demand. Water-neutral growth ordinances can offset additional water demand by either requiring or incentivizing water-efficient retrofits of existing development. These measures can include fixture and appliance replacements, rainwater harvesting, and stormwater capture.

The city of Bozeman served as a Net Blue Partner Community, advising on the development of the Toolkit. The city has experienced rapid growth but is in an area with limited water resources. Capitalizing on the existing partnership between the city, AWE, and ELI, the groups implemented the Net Blue Toolkit there, collaboratively developing revisions to a simple water rights transfer and in-lieu fee ordinances.

Beginning in early 2019, ELI and AWE staff worked with Bozeman city planners and attorneys on various concepts and drafts of both the revised ordinance and its associated manual. The Bozeman City Commission approved the ordinance revisions in August. Revisions to the water manual, which houses the details of the ordinance’s implementation, are still in progress.

As the Toolkit notes, water managers in 40 out of 50 states anticipate water shortages within the coming years. This effort with the city of Bozeman represents a successful application of ELI’s research and analysis in local government policy. The hope is that Net Blue’s adoption in Bozeman will inform other local governments and encourage them to adopt similar ordinances.

Food waste initiative strives to improve community composting

The Nashville Food Waste Initiative, led by the Nashville-based nonprofit Urban Green Lab with support from the Natural Resources Defense Council and the Environmental Law Institute, recently launched a project to develop community composting training and pilot sites in Nashville. Through this project, the Institute for Local Self Reliance, a national leader in community composting, is collaborating with NRDC to bring training and technical support on community composting to Nashville.

In 2015, NRDC launched the Nashville Food Waste Initiative as a pilot project to develop tools, policies, and strategies to prevent food waste, rescue surplus food to those in need, and digest what’s left to build healthy soil. ELI Senior Attorney Linda Breggin served as the project coordinator for several years and continues to support the initiative as senior strategic advisor.

The community composting initiative follows up on a recent NFWI study on community composting, which highlights benefits and opportunities related to re-establishing community composting in Nashville. Community composting is a valuable part of a resilient food scrap recycling infrastructure, offering a relatively cheap and quick way to reach higher diversion potential than practices like backyard composting. It also provides a huge range of environmental and social benefits, such as engaging communities in zero waste practices, increasing demand for and interest in composting, and providing useful skills and job training.

Following the release of this report, the Initiative convened local stakeholders last winter to discuss ways to overcome barriers and identify resources for community composting. Groups expressed interest in managing sites, providing land, and hosting volunteers.

Building off this initial interest, the community composting initiative will lay the groundwork for a robust community composting network, targeting often overlooked and under-resourced communities, and train practitioners and future trainers.

Through the end of 2020, the first phase of this project will focus on identifying and providing technical support to composting demonstration sites and community composting pilot projects. Concurrently, a series of live webinars and online training modules will build interest and skills for community composting within the greater Nashville community.

ELI in Action: States at front lines of transition to renewables

ELI and the American University Washington College of Law Program on Environmental and Energy Law co-sponsored a webinar, State Approaches to a Just Transition, to explore how states protect frontline communities while advancing the transition to a renewable energy economy. The panel featured four experts advancing a just transition in the District of Columbia, Illinois, and New York. Speakers provided lessons learned from climate legislation, including the New York Climate Leadership and Community Protection Act, the Illinois Future Energy Jobs Act, and the District of Columbia’s Clean Energy Omnibus Amendment. The discussion highlighted the implications of these policies in addressing the dual crises of racial injustice and a global pandemic.

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Each summer, ELI convenes a complimentary seminar series that offers an introduction to the legal and policy foundations of environmental protection in the United States. Taught by experts in their fields, the ELI Summer Schoolseminars cover major environmental statutes such as the National Environmental Policy Act, Clean Air Act, and Clean Water Act. The 2020 Summer School series was the second year to host a session on environmental justice, which will become a mainstay portion of Summer School moving forward.

This year’s Summer School was also the first to be held remotely due to COVID-19. On average, each session received about double the number of registrations compared to last year’s sessions. In total, over 3,900 participants registered for the 2020 Summer School series.

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The Trump administration has taken dramatic and sweeping steps to remake federal environmental regulation. A recent ELI report, Environment 2021: What Comes Next? offers a detailed analysis of how these deregulatory initiatives will affect environmental protection in the coming years.

Authored by Senior Attorneys James M. McElfish and Jay Austin, the report helps environmental practitioners, policymakers, and the public understand the scope and significance of recent changes and consider future directions for the regulatory system. The report makes no assumptions about this fall’s electoral results, but explores possibilities for various regulatory reform efforts under different electoral outcomes. The report is available for download on the ELI website.

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As the first part of a webinar series on environmental issues affecting Indigenous peoples, ELI convened a webinar titled Fighting Fire With Fire: Restoring Traditional Indigenous Practices for Ecological Stewardship. The webinar, featuring leaders from the U.S. Forest Service, California Department of Forestry and Fire Protection, and the Karuk Tribe, explores opportunities for tribes to collaborate with state, local, and federal authorities to provide prescribed fires and fire-related services on traditional lands under federal jurisdiction.

The speakers provided an overview of wildfire management at the federal, state, and tribal levels, including current efforts and opportunities for collaborative activities between tribes and governments. In a concluding discussion, speakers noted the importance of recognizing the value of traditional ecological knowledge, understanding a tribe’s history and context, and building relationships when entering collaborative agreements. Intertribal organizations innovating in tribal forest management include the Intertribal Timber Council and the National Indian Carbon Coalition.

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In August, the Institute announced the inaugural class of the Jim Rubin International Fellowship, a program to support rising environmental lawyers from developing countries. The fellowship honors the legacy of Jim Rubin, a highly respected attorney, environmental advocate, and devoted public servant.

This year’s fellows, Ginary Tatiana Gutiérrez Robledo of Colombia and Junhong Li of China, will work with ELI staff on cutting-edge issues of environmental law. Gutiérrez Robledo was most recently an attorney at the Inspector Attorney General Office in Colombia, focusing on government compliance, education, community empowerment, and environmental justice. Junhong Li previously represented local communities in public interest litigation at the Center for Legal Assistance to Pollution Victims at the China University of Political Science and Law.

The Judiciary accepts climate science, ELI study finds.

Food Waste Co-Digestion at Water Resource Recovery Facilities: Business Case Analysis

Read more about Food Waste Co-Digestion at Water Resource Recovery Facilities: Business Case Analysis

Author

Carol Adaire Jones, Craig Coker, Ken Kirk, and Lovinia Reynolds

Date Released

December 2019

Food Waste Co-Digestion at Water Resource Recovery Facilities: Business Case Ana

Co-digestion of food wastes with wastewater solids at water resource recovery facilities (WRRFs) can provide financial benefits to WRRFs as well as a broad range of environmental and community benefits. Co-digestion is a core element of the wastewater sector’s “Utility of the Future” initiative, which envisions a new business approach for pioneering WRRFs to create valuable energy and nutrient products via the recovery and reuse of residuals from the wastewater treatment process.

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