18 States Ask Industry Groups to Withdraw N.Y. E-Waste Suit

Government officials from across the country on Nov. 5 called on the electronics industry to withdraw its lawsuit against the New York City e-waste recycling law, calling the lawsuit a challenge to the rights of states and cities to pass producer responsibility laws that hold manufacturers accountable for their products.

In a letter to the Consumer Electronics Association (CEA) and the Information Technology Industry Council (ITIC), who filed the lawsuit, state and local government representatives from 18 states expressed their continued support for laws that give the electronics manufacturers responsibility for financing effective takeback services for all the products they are selling in those states.

"This lawsuit isn't really about the New York City e-waste law," said Wisconsin Sen. Mark Miller, sponsor of Wisconsin's new e-waste law, which passed two weeks ago. "This is really about the rights of states and cities to say that the manufacturers of toxic products need to be responsible for their products when consumers are ready to discard them. The outcome of this case could impact producer responsibility laws in all of our states, on a whole host of products."

The lawsuit, filed in U.S. District Court on July 24, argues that the New York City e-waste recycling law passed in April 2008 is unconstitutional. The law requires the electronics companies to collect and recycle old electronic products. Nineteen states have passed similar "producer takeback" laws. The letter to CEA and ITIC was signed by many of the legislators who sponsored state takeback laws in their states.

"This shot at New York is also a sly assault on environmental protection everywhere," said Rep. Jon Hinck, a member of the Maine House of Representatives. "States like Maine that have tackled the toxic e-waste problem have learned that the manufacturer responsibility approach is both fair and effective."

Maine was the first state to pass a producer responsibility law for electronics in 2004, and has also passed producer responsibility laws for mercury thermostats, mercury switches in autos, batteries, and fluorescent lamps.

Earlier this month, local governments from New York State, Oregon and California and an independent government association submitted an amicus brief to the court – providing legal arguments challenging the industry claims in the lawsuit, and in support of New York City's right to enact its producer takeback law. Two states, Maine and Washington, have provided affidavits that were submitted as part of the New York City's legal filings. The Natural Resources Defense Council (NRDC) has also intervened in the case, in support of the city's law, and is now a party to the case.

While 19 states have passed producer takeback laws, many of the resulting recycling programs have only recently been launched or will start in 2010 or 2011. Still, some programs are already showing high volumes in e-waste collected, beyond state agency expectations. The Washington State program, which began in January 2009, is collecting over 3 million pounds per month. Oregon, which has about half the population of Washington, is collecting about 1.5 million pounds per month since its program began in January.

States began passing recycling laws because there is no federal takeback law (and little likelihood of a strong federal law being adopted) and because voluntary industry programs are not effective. Local governments are increasingly challenged by the costs of managing products with toxic materials when they hit the waste stream. Proponents of producer responsibility laws believe that giving the manufacturers financial responsibility for their own products at disposal time both encourages recycling, and gives the manufacturers an incentive to design the products to be more recyclable.

"While many of these electronics companies have voluntary recycling programs, most of them don't actually collect significant volumes of e-waste. The exception is where strong state laws make them do it," said Barbara Kyle, coordinator of the Electronics TakeBack Coalition, a national environmental coalition that has supported state laws promoting "producer takeback" laws for electronics. "The industry complains about the 'patchwork of state solutions,' but the truth is that if their voluntary takeback programs were better, states and cities wouldn't be passing these laws."

The oral arguments in the New York City lawsuit are expected to begin in late December.