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Environmental Justice: Who Bears the Burden of Extended Producer Responsibility?

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Adanna C. Kalejaye
November 27, 2023

Extended Producer Responsibility (EPR) is an environmental protection strategy employed to decrease the overall environmental impact from a product by making the manufacturer responsible for the entire life cycle of their product—especially for the take-back, recycling and final disposal of the product. The philosophy behind assigning responsibility to producers is to nudge them to prevent waste at the source, promote more sustainable product design and support the achievement of public recycling/materials-management goals. Currently, in the United States, 118 EPR laws have been adopted across 33 states, but there is no federal law addressing EPR. What federal lawmakers have done concerning EPR is remove legislative barriers to enable states to individually develop and pass their own EPR initiatives.

Many of the 118 laws focus on products that are harder to recycle like electronics, carpet, medical waste, paint, batteries and mattresses. As of 2023, only six states have active EPR laws that relate to everyday plastic and paper packaging, which is the source of nearly one-third of all solid waste produced by the United States. These states include California, Colorado, Maine, Oregon, New Jersey and Washington. Maine is leading the way as the first state to implement packaging EPR laws, passing an act to support and improve municipal recycling programs and save taxpayer money in July 2021. The aim of the program is to reduce the volume and toxicity of materials used in packaging and increase recycling of packaging materials. Big corporations and producers of such products are mandated to pay into a fund based on the amount and the recyclability of packaging associated with their products.

A vital aspect of EPR is that it attaches a fee or cost to compliance—for both the producer and consumer. Product take-back policies usually have a stipulated disposal fee to cover recycling or disposal. Some fees may be imposed at the point of purchase (known as advance disposal fees) and others at the point of disposal (disposal fees). States like California impose a uniform advanced disposal fee on all electronics covered in their EPR program regardless of weight and type. This eases administrative issues arising from weighing and apportioning costs to individual products. An empirical study done using New York as a model reveal that adoption of EPR (for packaged goods) will translate into an additional $36 to $57 per month in grocery cost for the average family of four. This increase is independent of inflationary pressures.

An EPR instrument often utilized are advanced disposal fees—product-based fees added at the point of sale which attach additional end-of-life product management costs to the price of the product thereby internalizing costs that are often externalized to the environment. The addition of an extra cost to products influences both consumer and producer attitudes, acting as a deterrent on purchasing behavior for the consumers as the extra cost, when obvious to consumers, causes them to purchase less of the product depending on how elastic the demand for the product is. The plastic bag tax or fee imposed at the point of checkout typifies an advanced disposal fee—retailers are required to only use bags that are recyclable, reusable and compostable to sell goods and charge a fee of 5 cents or more for the use of the bags. In 2019, York University carried out a a focus group research study with more than 1,800 consumers in the Greater Toronto Area over the course of four months and found that low-income households (income less than $40,000/year) consume almost 20 percent more pre-packaged goods compared to families whose household incomes exceed $100,000 a year. Thus, increasing the cost of packaged food may have a potentially adverse effect on low-income groups.

Literature on EPR establishes how a shift in responsibility could provide incentives to prevent waste at the source, promote material selection for product design that are environmentally friendly and support the achievement of public recycling and materials-management goals. However, activities relating to the environment, especially waste management, often have implications for environmental justice and equity. Racial minorities and low-income communities have been disproportionately impacted by environmental injustices for decades. They often live/work around polluted environments—waste disposal facilities are also sited around them—and companies tend to site facilities that have a high chance of negatively impacting human health in communities that do not have the economic power and political will to challenge them. Environmental justice, as defined by the EPA, is the fair treatment and meaningful involvement of all people regardless of race, color, national origin or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies. Thus, solutions designed to curb the issue of waste generation must also consider how low-income earners or racially disadvantaged groups would be impacted. Failing to do so will likely constitute more hardship as management costs take up a substantial proportion of their income.

Author: Adanna Kalejaye is an internationally specialized lawyer in the fields of commercial law, environmental law, energy law and maritime law. She holds an LL.M (Master of Law) from Swansea University, Wales, UK. She is currently a doctoral candidate and research assistant in Public Policy at the John W. McCormack Graduate School of Policy and Global Studies, University of Massachusetts Boston. She teaches courses on sustainable development and zero waste at the Osher Life-Long Learning Institute (OLLI) in UMass Boston. Her research interests are in environmental law and policies, climate change, sustainable development, renewable energy, waste management, policy building and analysis at both national and international level. She can be contacted at [email protected].

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