No Silver Bullet: Why legislation isn’t enough to fix our waste management system

One year ago, I wrote this article (or more specifically, a version of it) discussing why legislation in and of itself was not enough to promote sustainable outcomes. Since then, there has been a flurry of legislative activity both in Canada and our neighbor to the south.?Extended Producer Responsibility legislation in particular has gained significant traction over the past year, with EPR legislation being passed in four states (Hawaii, Colorado, Maine and Oregon).?

Proponents of EPR legislation have heralded these developments, with both government and industry claiming that this is a watershed moment on the path to circularity. But what specifically about the legislation is going to fix our waste woes? We hear that EPR will encourage design for the environment, reduce the municipal tax base, increase recycling rates and recycled content requirements, and perhaps most importantly, keep valuable materials out of the landfill. While this remains to be seen (and in my opinion, is unlikely to happen), it still doesn’t discuss the actual steps to achieving these outcomes. There are also significant concerns surrounding whether we have the necessary data to make informed policy decisions.?

Putting the cart before the horse

To illustrate my point, consider the following scenario – A person walks into the doctor and makes an appointment because they haven’t been feeling well. The doctor calls on the patient, but before they have a chance to tell the doctor what’s wrong, the doctor?immediately prescribes them antibiotics and to drink two tablets, twice daily. Confused, the patient asks, “But doctor, I haven’t even told you where it hurts or what my symptoms are!”. “It’s okay, I heard that this medicine works well for other people”.?

While this is somewhat of a labored analogy, it captures the ludicrous process in which EPR legislation has been developed in some jurisdictions. We often hear about how we are doing such a terrible job of recycling, particularly with respect to plastic packaging. All sorts of numbers have been banded about, i.e. “Less than 9% of plastics are recycled”, which suggests that not only do we have a problem with low recycling rates, but we have a good sense of just how badly we are doing. Would it surprise you if I said that this number is not an actual measurement? What if I told you that states such as Colorado, Maine and Hawaii have all adopted EPR legislation, but they have little sense of what the recycling rate for packaging actually is. Don’t believe me? Ask them.?

One of the most fundamental misconceptions surrounding waste in both Canada and the United States is what data do have access to, and what data we need to collect. In order to calculate the recycling rate for printed paper and packaging from the residential sector, we need to know the quantities collected, sorted and baled (numerator),and quantity of printed paper and packaging generated into the market for the purposes of residential consumption (denominator).?

None of the states in question have this data. Nor do they have data on recycling rates for individual packaging types (i.e. newsprint, aluminum, PET/HDPE etc.), or a clear sense of what is coming from the residential sector, and what is coming from the IC&I (industrial, commercial, institutional) sector. Information on the cost of material management is also hard to come by, and don’t even get me started on the paucity of waste audits and the lack of information on residue/contamination. In fact, none of these states have a formal mechanism for collecting this data, all of which is necessary to calculate steward fees under a producer responsibility model.?

Some will argue that setting up an EPR system will help gather this information, but we have a bit of a chicken and egg situation. Legislation was drafted to address a problem that we know neither the size, or scope of. At best, we can tell people “A lot of recyclable material is ending up in the landfill”, but any numbers that we see in the literature to date is nothing more than a good guess. This doesn’t even begin to discuss what information we have on available system capacity, infrastructural maturity and the costs of developing infrastructure if needed.

Good policy is predicated on good data – I can’t think of a single other instance in which sweeping legislative reform was adopted without the due diligence of gathering baseline data. I challenge anyone from the aforementioned jurisdictions to explain how recyclable generation is calculated, and whether they have conducted this modeling prior to tabling EPR legislation.

The dangers of prescriptive legislation: An Ontario Case Study

Overly prescriptive legislation can stifle innovation and inhibit the adaptive capacity of a waste management system to respond to unexpected changes – in short, poorly designed legislation can hurt more than it helps, leading to a less resilient system. This, in part, is attributed to the fact that waste legislation is often static and has difficulty responding to changes in technology, commodity markets, packaging design, roles/ relationships and responsibilities of affected stakeholders etc. As an example, Ontario’s 2002 Waste Diversion Act was considered ground breaking legislation that ushered in a shared producer responsibility model for printed paper and packaging waste. The act was comprehensive, but not particularly flexible, placing significant emphasis on recycling based outcomes for a specific range of materials.

While Ontario’s Blue Box recycling program flourished initially, program performance (both with respect to recycling rates and operating costs) would later stagnate and eventually decline. The Waste Diversion Act was designed to address the province’s waste management issues and needs in 2002, but failed to evolve in tandem with how packaging waste and technology changed. The composition of what was found in the Blue Box shifted over time, moving away from bulkier paper based packaging, to light weight and volumous plastic packaging. In spite of these changes, approaches to managing packaging waste continued to emphasize recycling based outcomes, despite the fact that these materials were extraordinarily difficult and costly to mechanically recycle. As a result, recycling system costs increased by double digits year over year, while recycling rates declined. This is a situation that threatens to repeat itself in jurisdictions across North America – support for producer responsibility legislation for packaging waste has gained significant traction in recent years. Oregon, Maine, New York State and Washington State have passed (or are considering) EPR legislation.

This in and of itself is not necessarily a bad thing – what is concerning however is that the focal point of legislation continues to be on trying to recycle as much as possible, for the broadest range of materials. What policy makers fail to understand is that no amount of legislation can magically make a material recyclable – in the absence of having viable end markets, end use applications and effective processing infrastructure, many materials will continue to end up in landfills (or incur exorbitant costs trying to recycle materials that have no business being recycled). Legislation that mandates minimum recycling rate targets, recycled content requirements or financially penalize materials that aren’t readily recyclable fails to acknowledge the economic and technical constraints for both packaging design, and managing packaging waste at its end of life. There is also the risk that recycling focused legislation can result in inferior environmental and economic outcomes. As an example, legislation that imposes financial penalties (or incentives) based on a material’s recyclability, may encourage packaging producers to abandon the use of light weight plastics, in favor of more conventionally recyclable materials (i.e. glass bottles instead of a plastic laminate pouch). While this may intuitively seem like a “good” switch, when taking a life cycle approach, package light weighting often results in a smaller environmental footprint, even when these materials aren’t recycled. Defining success or desired outcomes too narrowly through legislation can even discourage innovation, both with respect to packaging design, as well as what types of technology we use to manage packaging waste.

What should good legislation do?

Legislation should ideally be flexible, providing stakeholders with the latitude to organically develop solutions in response to changes in priorities, circumstances and goals. In many ways, sustainable waste management legislation needs to take a macro lens – what are we trying to accomplish? Assuming that we actually subscribe to three pillars of sustainability, a sustainable solution needs to consider environmental, economic and social dimensions. What is critical for both policy makers, local governments and producers to understand, is that the goal of a sustainable waste management system is not diversion... it's about achieving preferable environmental outcomes, in an economically tenable way that maximizes the value of waste as a resource. Solutions must also be inclusive and accessible to the broadest range of people, with a specific emphasis on protecting vulnerable and marginalized communities.

To illustrate the disconnect between existing approaches to waste management legislation and sustainable waste management legislation, consider Ontario’s decision to expand the list of acceptable Blue Box materials to include “packaging-like products” and certain single-use items. Examples of packaging like products include: aluminum pie plates, tin foil, plastic wraps and food trays, plastic cutlery/plates and single use drink containers. Seems like a great idea, right? Not quite. Expanding legislation to include these items does not change the fact that these materials cannot be readily recycled and will in all likelihood, still end up in the landfill. The costs associated with attempting to develop the infrastructure to recycle these materials are exorbitant – even if solutions are found, there are still no end markets and end use applications for these items. Under the province’s producer responsibility legislation, these costs will be borne by the producers of these materials, which in all likelihood will be passed onto the consumers (the magnitude of this impact his heavily debated).

If the landfill is the likely outcome for these materials, it begs the question, “What are we trying to achieve?” At this juncture, it’s not entirely clear what expanding the list of Blue Box materials achieves other than a higher cost for producers (and subsequently, a higher cost for households).

While proponents of this legislative change will cite that packaging producers will have the ability to innovate and develop new end markets and end use applications for these materials, there is very little evidence (if any) of that occurring. Policy makers often erroneously assume that packaging producers have a significant degree of autonomy and control regarding what happens with their products at end of life. The reality is that the vast majority of CPG companies are “market takers”, subject to macro-economic conditions that ultimately determine the value and recyclability of a particular material. In short, if a material had inherent value at its end of life when recycled, then markets would already exist for these materials.

Understanding Legislation Cause and Effect

As support for extended producer responsibility legislation gains momentum, a common refrain you will hear from advocates of EPR is that jurisdictions with EPR divert more than those that don’t. In fact, the perceived efficacy of EPR legislation in provinces such as British Columbia and EU member countries have served as a template for other jurisdictions to emulate – “If it works there, why can’t it work here?”. The short answer is that it isn’t that simple, and policy makers are fundamentally misunderstanding what actually drives program performance. Legislation is not what makes for an effective and sustainable waste management program, system maturity is.

While there is no formal definition for what constitutes system maturity, there are some general characteristics: High levels of accessibility and convenience, robust waste collection and processing infrastructure, adequate sorting and processing capacity (both at a material recycling facility, and downstream processors), high levels of awareness and participation among households, strong end market demand for baled and marketed material, viable end use applications and alternative end of life pathways for non-recyclable material. This list is not exhaustive, but it touches on the basic elements of what constitutes a mature waste management system – in many ways, these are pre-requisites to a successful and sustainable system. Legislation can be used to compliment or encourage these characteristics, but will never be able to make up for their absence. The relationship between EPR and higher recycling rates has nothing to do with producer responsibility, and more to do with the fact that jurisdictions which have adopted EPR legislation have mature waste management systems. Controlling for system maturity, there is no discernable difference in program performance when comparing programs with EPR for packaging waste, and those without.

The characterization that producer responsibility legislation is what will help us meet our circularity and sustainability goals is a fundamental misrepresentation of what legislation (of any kind) is capable of doing. It is of far greater importance to ensure that we focus on developing accessible, convenient, economical and robust waste management systems that provide stakeholders with multiple pathways for effectively managing waste. Legislation should be used to compliment these outcomes, not prescribe what they should be.

I want to stress that I am not advocating for eliminating waste management legislation, producer responsibility etc. I do however want to stress that legislation cannot be prescriptive, nor can it be static. It is a powerful tool when designed with care and caution, but extremely detrimental when adopting a “one size fits all” approach. Too often modern waste management legislation tends towards the latter – particularly for packaging waste. In virtually every instance, the stated goal is to “increase recycling rates, recyclability and the number of items that consumers can recycle”. This is a terrible goal….. One that leads to bad policies, bad practices and even worse behaviors.