<h4><em>Under review</em></h4>
<p>Most household and common waste is regulated by states and localities. Much solid and hazardous waste is also regulated through the federal <a href="#RCRA">Resource Conservation and Recovery Act</a> ("RCRA"). In addition, if waste or hazardous substances contaminate land or water, responsible parties may be liable for cleanup costs under with the <a href="#CERCLA">Comprehensive Environmental Response, Compensation, and Liability Act</a> ("CERCLA"). Because waste regulation statutes only deal with waste once it is produced, Congress passed the <a href="#Pollution-Prevention">Pollution Prevention Act</a> ("PPA") to encourage the reduction, reuse, and recycling of waste.</p>
<h2><a name="RCRA"></a>RCRA</h2>
<p>In 1976 Congress passed the <a href="http://www.gpo.gov/fdsys/pkg/STATUTE-90/pdf/STATUTE-90-Pg2795.pdf">Reso… Conservation and Recovery Act</a> (“RCRA”) as an amendment to the 1965 Solid Waste Disposal Act. The <a href="http://www.eli.org/pdf/community_resource_center/ELI_factsheet_RCRA.pdf…; title="A brief overview of RCRA for citizens focused on environmental justice is provided here.">legislation</a><a href="#_msocom_4"></a>&nbsp; was a reaction to two growing problems: the large amount of household and industrial waste being produced, and the large number of sites contaminated by unregulated disposal of hazardous waste. <a href="http://www.epa.gov/osw/basicinfo.htm">RCRA</a&gt; sought to address the first problem by encouraging resource recycling, waste reduction, and minimum standards for landfill design, and the second by promoting proper waste disposal and clean up for hazardous waste management sites.</p>
<p>For a primer on hazardous waste and contaminated sites law, watch and download materials from the ELI Summer School program “<a href="http://www.eli.org/events/eli-summer-school-series-2014-clean-land-haza… Land: Hazardous Waste and Sites</a>."</p>
<p>For a thorough explanation of how RCRA works, see Susan McMichaels, “<a href="http://www.eli.org/eli-press-books/rcra-permitting-deskbook">The RCRA Permitting Deskbook</a>” and “The Law of Environmental Protection,” ch. 14.</p>
<h2><a name="Solid-Waste"></a>Solid Waste</h2>
<p>RCRA defines <a href="#" title="42 USC § 6903">solid waste</a> as "any garbage, refuse, sludge . . . and other discarded material" in any form except an uncontained gas. <a href="#" title="40 CFR 261.2">This</a><a href="#_msocom_6"></a>&nbsp; includes any material that is "abandoned" by being disposed of, burned, or accumulated, stored, or treated in place of being abandoned, or any material that is improperly "recycled" by being burned for energy, reclaimed, accumulated speculatively, or used in a manner constituting disposal. While this broad definition includes almost all waste, there are several exceptions. These include <a href="#" title="42 USC § 6903(27)">wastes regulated by another federal statute; domestic sewage; irrigation return flows</a><a href="#_msocom_7"></a>; and <a href="#" title="American Mining Congress v. EPA, 907 F.2d 1179 (D.C. Cir. 1990)">materials that are properly recycled or reused</a>.</p>
<p>For a discussion of the current state of RCRA law over solid waste, see John Wittenborn, “<a href="http://elr.info/news-analysis/41/10005/saga-continues%E2%80%94howmet-an… Saga Continues—Howmet and the Ongoing Uncertainty of Solid Waste Regulation under RCRA</a>.” Marian Chertow reviews the future of solid waste management in “<a href="http://elr.info/news-analysis/32/10812/pursuing-sustainable-solid-waste… Sustainable Solid Waste Management</a>.</p>
<p>Most solid waste is municipal solid waste ("MSW"). MSW is regulated mostly by state and local governments under <a href="http://www.eli.org/keywords/governance#role-of-states-and-tribes&quot; title="Link to Cooperative Federalism Discussion">cooperative federalism</a>, where the federal government promulgates basic rules for the treatment, processing, and disposal of waste, and the states implement the regulations. <a href="http://www.epa.gov/osw/nonhaz/municipal/landfill.htm">Federal regulations</a> require solid waste landfills to employ specific operating practices, such as placing a liner between the waste and the soil, monitoring local groundwater, and requiring plans and financial assurances for the landfill's eventual closing.&nbsp; State and local governments carry out the permitting and regulation of these processes, and can impose more stringent requirements if desired.</p>
<h2><a name="Hazardous-Waste"></a>Hazardous Waste</h2>
<p>Solid wastes may be hazardous waste if they fall into one of two categories: listed waste and characteristic waste. <a href="#" title="42 USC § 6921">Listed</a> wastes are specific wastes and wastestreams described by name in various lists compiled by the Environmental Protection Agency ("EPA"). They turn everything they touch into hazardous waste. Characteristic wastes are wastes that exhibit a hazardous characteristic: <a href="#" title="Fluids used in production of crude oil or natural gas are exempt from these definitions and are regulated by other environmental statutes. This exception is receiving more attention as the process of recovering natural gas through hydraulic fracturing (&quot;fracking&quot;) comes to the forefront of public discourse. ">ignitability</a>, corrosivity, reactivity, or toxicity. Generators are tasked with determining whether the waste they produce exhibits any of the characteristics of hazardous waste, either through EPA-approved tests or through their knowledge of the waste's properties.</p>
<p>Congress created a system to track hazardous waste from its creation to its final disposal in order to assure that all hazardous waste is accounted for and disposed of responsibly. The system includes different responsibilities for each type of actor handling hazardous waste. <a href="#" title="42 USC § 6922">Generators</a> of hazardous waste must first get a permit to create the waste, then must follow strict labeling and recordkeeping guidelines. When it is time to dispose of the hazardous waste, generators fill out a "manifest" form that travels with the waste and tracks its whereabouts. <a href="#" title="42 USC § 6923">Transporters</a> of hazardous waste must also track the waste using the manifest system. The hazardous waste ends up at a <a href="#" title="42 USC § 6924">treatment</a>, storage, and disposal facility ("TSD"), where it is disposed of according to strict federal regulations. TSDs must also report the waste's disposal to the generator through the mainfest system. Due to the inherently risky nature of their activities, TSDs are subject to federal siting, permitting, operating, closure, and financial assurance requirements. If the system operates correctly, a waste is tracked and responsibly managed from "cradle-to-grave."&nbsp; <ins cite="mailto:Scott%20Edward%20Schang&quot; datetime="2011-10-01T15:39"></ins></p>
<p>There are several international agreements regulating the transportation and disposal of hazardous waste, the largest being the <a href="http://www.epa.gov/osw/hazard/international/basel.htm">Basel Convention</a> on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. This agreement aims to promote the environmentally sound disposal of hazardous waste by <a href="http://www.basel.int/TheConvention/Overview/tabid/1271/Default.aspx">re… and regulating</a> the import and export of hazardous waste among its 169 parties. The Basel Convention broadly defines <a href="http://archive.basel.int/text/con-e.pdf">waste</a&gt; as "substances or objects which are disposed of or are intended to be disposed of," including materials that will be reused in a productive way. This expansive definition can have impacts on businesses transporting goods and recycled materials internationally. The U.S. is not a signing party to the Basel Convention, and instead regulates its international trade in hazardous waste through <a href="http://nepis.epa.gov/Exe/ZyNET.exe/P1009YPK.TXT?ZyActionD=ZyDocument&am…\zyfiles\Index%20Data\95thru99\Txt\00000030\P1009YPK.txt&amp;User=ANONYMOUS&amp;Password=anonymous&amp;SortMethod=h|-&amp;MaximumDocuments=1&amp;FuzzyDegree=0&amp;ImageQuality=r75g8/r75g8/x150y150g16/i425&amp;Display=p|f&amp;DefSeekPage=x&amp;SearchBack=ZyActionL&amp;Back=ZyActionS&amp;BackDesc=Results%20page&amp;MaximumPages=1&amp;ZyEntry=1&amp;SeekPage=x&amp;ZyPURL">multilateral agreements</a>.</p>
<p>For an interesting discussion of the status of U.S. hazardous waste site laws versus international norms, see Joel Mintz, “<a href="http://elr.info/news-analysis/33/10694/where-do-we-fit-us-information-d… Do We Fit In? U.S. Information Disclosure and Hazardous Waste Remediation Laws as Compared with the Policy Suggestions of the U.N. Environment Program</a>” and “<a href="http://elr.info/news-analysis/32/10307/time-walk-walk-us-hazardous-wast… to Walk the Walk: U.S. Hazardous Waste Management and Sustainable Development</a>.”</p>
<h2><a name="CERCLA"></a>CERCLA</h2>
<p>Prior to 1976, hazardous waste disposal was not stringently regulated, and significant quantities of hazardous substances had been buried or abandoned around the country. Following <a href="http://www.epa.gov/aboutepa/history/topics/lovecanal/01.html">Love Canal</a> and other famous cases of contamination discovered in residential areas, Congress responded with the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), also known as "Superfund." <a href="http://www.epa.gov/superfund/policy/cercla.htm">CERCLA</a&gt; regulates contaminated sites, assigns liability for the contamination, and provides funding for cleanup if no viable responsible parties can be found. <a href="#" title="42 U.S.C. § 9607">It</a> also provides EPA with express authority to order "response actions" when there is a "release or threat of release of a hazardous substance" from a facility. Courts have broadly interpreted CERCLA to impose liability on a wide range of actions and actors.</p>
<p>See how ELI has worked to improve the solutions to toxic waste sites over the years <a href="http://www.eli.org/sites/default/files/docs/success_toxic_waste.pdf">he…;
<p>CERCLA created stringent rules of liability to avoid leaving the federal government with cleanup costs when potentially liable actors disclaimed responsibility or became insolvent. It is a strict liability statute, meaning that the government does not have to prove that a party intended to dispose of the waste improperly or disposed of it improperly; the fact that it was disposed is evidence enough. Additionally, CERCLA imposes joint and several liability, meaning that a party can be liable for the entire cleanup even if it was one of many parties contributing to the problem. Under CERCLA, persons who in the past disposed of wastes legally or who merely owned contaminated sites may be held liable for historic contamination on their property. <ins cite="mailto:Scott%20Edward%20Schang&quot; datetime="2011-10-01T15:12"></ins></p>
<p><a href="http://www.epa.gov/superfund/about.htm">CERCLA</a&gt; provides for two types of actions: short-term "removal" at immediately dangerous sites and long-term "remediation" at stable but contaminated sites. In present day, removal actions are less common because most immediate threats from contaminated sites have been cleaned up or contained. Therefore, the current focus of the Superfund program is the listing, cleanup, and assignment of responsibility in remediation actions.</p>
<p>For a discussion of CERCLA action types, see Jerry Anderson, “<a href="http://elr.info/news-analysis/23/10659/classification-cercla-response-a… of CERCLA Response Actions as Removal or Remedial</a>.”</p>
<h2><a name="CERCLA-Procedures"></a>CERCLA Procedures</h2>
<p><a href="http://www.epa.gov/superfund/cleanup/index.htm">Potential</a&gt; Superfund sites are identified and inspected, then given a score on the Hazard Ranking System. If a site scores high enough, it is placed on the National Priority List ("NPL"). Once a site is placed on the NPL, EPA determines the best way to go about the cleanup, through "<a href="http://www.epa.gov/superfund/cleanup/rifs.htm">remedial investigations," "feasibility studies</a>," and public comment. A "<a href="http://www.epa.gov/superfund/cleanup/rod.htm">record of decision</a>” is created, which details the actual alternatives considered and the final cleanup actions to be taken. Once <a href="http://www.epa.gov/superfund/cleanup/postconstruction/index.htm">comple…;, those responsible may be required to monitor the site to ensure that the cleanup will "provide for the long-term protection of human health and the environment." The NPL currently has approximately <a href="http://www.epa.gov/superfund/sites/npl/index.htm%20">1300 sites, with less than 100 proposed sites</a>.&nbsp; Since CERCLA's inception in 1982, more than 350 sites have been completely remediated and over 1100 sites have "finished construction," meaning that they are stable and are being monitored.</p>
<p>For a discussion of getting a Superfund site off the National Priorities List, see David Abney, “<a href="http://elr.info/news-analysis/24/10316/unringing-bell-overturning-epa-p… the Bell: Overturning EPA Placement of a Site on the National Priorities List</a>.”</p>
<p>States are critical in CERCLA decisionmaking and implementation. As in RCRA, states must abide by all federal standards, but can choose more stringent standards for variables like level of cleanup. States work with the federal government to facilitate remediation; they can&nbsp;<a href="#" title="42 U.S.C. 9628(b)">administer cleanups</a> and <a href="#" title="42 U.S.C. 9628(a)">can receive funding when they themselves conduct a cleanup</a><a href="#_msocom_19"></a> .</p>
<h2><a name="Potentially-Responsible-Parties"></a>Potentially Responsible Parties</h2>
<p>Most CERCLA response actions costs millions of dollars, and the government or liable parties are eager to find <a href="#" title="42 U.S.C. § 9607(a) setting out parties who may be liable for cleanup costs">Potentially Responsible Parties </a>("PRPs") with whom they can share the costs.&nbsp; When the government carries out the cleanup, it may sue PRPs in "<a href="#" title="42 U.S.C. §9607(a)(4)(A)">cost recovery actions</a>;" when some of the PRPs carried out the cleanup, they may sue other PRPs in "<a href="#" title="42 U.S.C. § 9613(f)">contribution actions</a>." <a href="#" title="42 U.S.C. § 9607(a)">There</a><a href="#_msocom_23"></a> are four main types of PRPs: (1) current owners and operators of the site, (2) prior owners of operators of the site at the time of dumping, (3) generators of the waste, and (4) transporters of the waste who played a role in selecting the site of the waste's disposal. Some of these definitions have been read broadly to encompass parties like the financial institutions that lent money to the PRPs and unknowing land purchasers. Because of political backlash, liability for some of these controversial parties has been <a href="#" title="In addition to these exceptions, there are several general defenses against liability, including that contamination was caused by an act of God, an act of war, or an act of omission of an unrelated third party. However, in practice these defenses are difficult to prove and parties claiming them often lose on the merits.">limited</a>. <a href="https://web.archive.org/web/20101117021638/http://www.epa.gov/oecaerth/… example</a>, now <a href="https://web.archive.org/web/20110529114922/http://www.epa.gov/complianc…; are not liable unless they take active management control of the contaminated site, "<a href="https://web.archive.org/web/20130415150601/http://www.epa.gov/oecaerth/… landowners</a>" are not liable if they make appropriate inquires before purchase and comply with subsequent cleanup processes, and <a href="https://web.archive.org/web/20030622151257/http://www.epa.gov/complianc… or small businesses</a> can limit their liability by entering into de minimis and de micromis actions which cap liability for a comparatively small payment.</p>
<p>For a discussion of the current state of CERCLA liability law, see Kevin Gaynor, “<a href="http://elr.info/news-analysis/40/11198/unresolved-cercla-issues-after-a… CERCLA Issues after <em>Atlantic Research</em> and <em>Burlington Northern</em></a><em>,</em>” Charles Warren, “<a href="http://elr.info/news-analysis/41/10790/courts-shed-light-application-ce… Shed Light on CERCLA’s Bona Fide Prospective Purchaser Defense</a>.”</p>
<p>For a discussion of how to value contaminated property, see Robert Simons, “<a href="http://www.eli.org/eli-press-books/when-bad-things-happen-to-good-prope… Bad Things Happen to Good Property</a>.”</p>
<h2><a name="Brownfields"></a>Brownfields</h2>
<p>CERCLA's stringent and broad liability rules can create a situation in which actors are afraid to invest in potentially contaminated properties for fear of future liability under the statute. These unused sites are referred to as "<a href="http://www.brownfieldscenter.org/index.cfm">brownfields</a>,&quot; &nbsp;“an industrial or commercial property that remains abandoned or underutilized in part because of environmental contamination or the fear of such contamination.” " To combat this problem, <a href="http://www.epa.gov/brownfields/basic_info.htm">EPA</a&gt; created a program to "empower states, communities, and other stakeholders in economic redevelopment to work together in a timely manner to prevent, assess, safely clean up, and sustainably reuse brownfields." The program functions by providing grants and funding to parties looking to clean and develop brownfields, as well as limiting liability for actors who undertake the public service of cleaning up contaminated sites. One of the most important aspects of the brownfield program is the release from liability for actors who voluntarily undertake a brownfield cleanup.</p>
<p><a href="http://epa.gov/brownfields/state_tribal/pubs.htm">States participate cooperatively</a> with the federal government to facilitate remediation of brownfield sites. This cooperation is facilitated through federal grants and state implementation of federal brownfield program requirements. Some heavily industrial states, for example New Jersey, prevent the transfer of contaminated property altogether. New Jersey's <a href="http://www.nj.gov/dep/srp/isra/isragide.htm#intro">Industrial Site Recovery Act</a> ("ISRA") requires certain levels of remediation before an "industrial establishment" can be sold, transferred, or closed. The goal of this and similar programs is to promote "<a href="https://web.archive.org/web/20090310165804/http://www.nj.gov/dep/srp/is… and timely cleanups</a>" and eliminate unfair burdens on those eventually responsible for site remediation.</p>
<p>ELI has an excellent <a href="http://www.brownfieldscenter.org/index.cfm">website</a&gt; on brownfields, as well as an extensive body of <a href="http://www.brownfieldscenter.org/publications.cfm">publications</a&gt;, many free for download, and an extensive <a href="http://www.eli.org/Program_Areas/brownfields_program.cfm">research</a&gt; program on contaminated sites.</p>
<p>For an article on how brownfield programs can help encourage smart growth, see Joel Eisen, “<a href="http://elr.info/news-analysis/39/10285/brownfields-development-individu… Development: From Individual Sites to Smart Growth</a>.”</p>
<h2><a name="Pollution-Prevention"></a>Pollution Prevention</h2>
<p>Congress passed the Pollution Prevention Act of 1990 ("PPA") to encourage reduction in the amount of waste produced, not just regulation of wastes that had already been generated. While the act includes mainly voluntary measures, it has helped reduce the amount of waste produced according to <a href="#" title="For example in fiscal year 2010, PPA prevented almost 100 million pounds of hazardous waste, saved 40 million gallons of water, and conserved 2,568 BBtu's of energy while saving manufacturers over $11 million dollars.">EPA</a>.</p>
<p><a href="#" title="42 U.S.C. §13101">PPA</a><a href="#_msocom_26"></a>&nbsp; creates the well-known hierarchy of "reduce, reuse, recycle" by encouraging generators to first try to reduce or reuse waste. When this was not feasible, generators are encouraged to recycle the waste or to at least treat it "in an environmentally safe manner." Disposal or release into environment is considered a "last resort."</p>
<p>For articles on innovative uses of pollution prevention, see Richard Reibstein, “<a href="http://elr.info/news-analysis/39/10851/using-tools-pollution-prevention… the Tools of Pollution Prevention to Reduce Greenhouse Gas Emissions</a>,” and William Thomas, “<a href="http://elr.info/news-analysis/30/10299/using-auditing-pollution-prevent… Auditing, Pollution Prevention, and Management Systems to Craft Superior Environmental Enforcement Solutions</a>.”</p>

Real Benefits Fostering Food Scrap Recycling
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
Linda K. Breggin

Between 30 to 40 percent of food is wasted along the supply chain, from processing through in-home and dining-out preparation and consumption. Worse, only 5 percent of the waste is currently diverted to compost or anaerobic digestion facilities that can break down scraps and recycle them into the environment. The other 95 percent has considerable environmental, social justice, and cost implications. As a result, the federal government has set a goal of reducing food waste by 50 percent by 2030.

ELI’s Food Waste Initiative conducts research and collaborates with stakeholders to meet the federal goal by designing and implementing government policies and public-private initiatives to promote food waste reduction, edible-food donation, and diversion of remaining food waste from landfills and waste-to-energy plants toward productive uses.

In addition, I serve as the project coordinator for the Nashville Food Waste Initiative, a project of the Natural Resources Defense Council. In 2015, NRDC picked Nashville as its pilot city for developing high-impact local policies and actions to address food waste. NFWI works with the government of Nashville and Davidson County, as well as a wide range of business and nonprofit stakeholders, to create models for cities around the country.

NFWI’s efforts focus on preventing food waste and rescuing surplus food to feed those struggling with hunger — the two highest-priority strategies. But, NFWI also focuses on food scrap recycling which, although a lower priority, plays a key role in efforts to divert wasted food from landfills and prevent associated methane emissions and nutrient loss.

NRDC’s 2017 report “Estimating Quantities and Types of Food Waste at the City Level” found that as much as 178,920 tons of food are wasted annually in Nashville, and that industrial, commercial, and institutional generators are responsible for approximately 67 percent of this waste.

Motivated in part by these findings, ELI Research Associate Sam Koenig and I interviewed over 25 relevant Nashville stakeholders — including state, regional, and local government officials, waste management companies, advocates, and generators — in an effort to identify the barriers.

ELI recently published the findings in a Landscape Analysis of Industrial, Commercial, and Institutional Food Scrap Recycling in Nashville. The report outlines specific actions that key actors, such as local governments, businesses, and nonprofits, can take to build infrastructure and increase food scrap recycling in Nashville.

Our research found that Nashville’s existing infrastructure is limited (with only one nearby commercial organics composting facility and three organics haulers), meaning that increased capacity will be necessary if the area is to establish a robust and resilient food scrap recycling system.

NFWI points to several policies and practices that could foster sustainable food scrap recycling infrastructure. Interviewees suggested that government subsidies for organics recycling businesses or a government procurement policy that encourages the use of finished compost products in construction and landscaping projects could spur infrastructure growth. And, streamlining the state permitting process for new organics processing facilities could lower the barriers to entry for prospective processors. In addition, the creation of a solid waste authority that operates as an enterprise fund could make it easier for Nashville’s government to finance new infrastructure.

NFWI’s research concluded that in Nashville less than 1.5 percent of food scraps are recycled. Practices are limited by numerous barriers, including low awareness of the impact of food waste and benefits of food scrap recycling, the comparatively low cost of landfilling, the need for employee education and training, and the lack of space for food scrap bins in kitchens or on loading docks.

NFWI’s research, however, also identified several steps that can be taken to address these barriers, including education, financial incentives for industrial, commercial, and institutional generators, and limits on landfilling organic wastes.

The report comes at a pivotal juncture, as Nashville’s population is growing at triple the national average, and the landfill upon which it predominantly relies is quickly reaching capacity. Moreover, it recently joined the handful of cities that have set zero waste goals and is currently in the process of developing a long-term zero waste master plan.

The NFWI-ELI report will help motivate stakeholders to take action on food scrap recycling. Our study contains valuable information for other cities that would like to expand their food scrap recycling infrastructure and practices.

Real benefits foster food scrap recycling.

As Our Problems Out Race Our Solutions, Humanity Needs a Completely New Strategy
Current Issue
As Our Problems Out Race Our Solutions, Humanity Needs a Completely New Strategy

On the first Earth Day, in April 1970, Senator Edmund Muskie called for “a total strategy to protect the total environment.” We have had time to pull this off — nearly a half-century after Muskie’s clarion call — but have failed. Yes, gains in environmental quality have happened, but as time has passed, we have witnessed the emergence of global-level, existential threats. These include the thinning ozone layer, the crash of biodiversity, ocean acidity and the demise of top predator fish and coral ecosystems that spawn marine life, sea-level rise and the forced relocation of hundreds of millions of people, and of course the accelerating change in the Earth’s overall climate and the resulting change in weather patterns and spawning of monster storms.

The human race is pushing on or through what the Stockholm Resilience Center has called “planetary boundaries” with a certain reckless abandon even as the governance mechanisms needed to address these threats are under daily assault by anti-state activists and science deniers among the pundit class. The environmentalist Bill McKibben, commenting on last fall’s report of the Intergovernmental Panel on Climate Change, observed that, “We’re running out of options, and we’re running out of decades.”

Over the past 50 years, society has pinned its hopes on a variety of actors: companies that have moved beyond compliance and embraced sustainability, cities pursuing novel strategies to meet urban environmental challenges, citizens mobilized with new technologies, from blockchains to big data to artificial intelligence. But none of these alone, no matter how well funded or motivated, can solve the environmental challenges we now face. As the IPCC concluded, the changes needed have “no documented historical precedent.”

What follows is a coming together of sorts that focuses on the bricks and mortar of a possible strategy to address our total environment at a time of urgent need. The discussion took place at the ELI-Miriam Hamilton Keare Policy Forum, with a panel of experts drawn from industry, academia, the legal community, and the public sector who discussed a preliminary sketch for a new environmental paradigm presented by ELI’s Scott Fulton and David Rejeski in the September 2018 edition of the Environmental Law Reporter.

Scott Fulton: Our purpose today is to talk about the emergence and convergence of some new and important drivers of environmental behavior and how to harness them and integrate them into a composite that helps us achieve the future that we all want. Two new drivers are private-sector environmental governance systems and technology.

To tee up this conversation, here is the central thinking from an article that our moderator, David Rejeski, and I wrote for the September 2018 edition of the Environmental Law Reporter entitled “A New Environmentalism: The Need for a Total Strategy for Environmental Protection.”

We came up with a chart to encapsulate our analysis. We put a vertical axis to reflect that some of the drivers are top-down in operation and some of them are bottom-up. We added a horizontal axis to reflect that some of the drivers are externally induced while others are internally motivated. That creates four quadrants. Each encapsulates and describes both a driver and a resultant system that emerges.

Working counterclockwise, let’s start at the quadrant in the upper right hand corner. In Quadrant 1, the driver is law and the system is traditional government action. Variations of command-and-control regulation are here.

In Quadrant 2 the driver is risk management and the system is private environmental governance that manages and reduces that risk — whether reputational or financial. This quadrant emerges from what we believe are enduring changes in the business orientation toward the environment. These are changes that derive from the environmental values that we carry into our jobs. These values are strongly reinforced by shareholder initiatives, desires for sustainability, and customer and supply chain demands. Managers increasingly regulate environmental behavior not only of their own operations but also of suppliers.

These values are reinforced by investor and insurer demands that perceive environmental challenges as financial risks. They are also driven by the opportunity to pivot from a risk-reduction orientation to brand enhancement, with green branding offering a marketing distinction. We should note that the accountability system associated with this quadrant is powerful. The levers are market access and access to finance, the very lifeblood of business.

In Quadrant 3, the driver is technology and the system is autonomous monitoring and correction. That includes systems that automatically change in the face of observed phenomena. In our article, we use the example of a sensor-based snowpack monitoring system in the Sierra Nevada. That in turn informs operation of a hydroelectric dam and the distribution of water resources for irrigation and human consumption. With the advent of artificial intelligence and blockchain approaches, it’s reasonable to expect that we’ll see self-monitoring systems proliferating in the future.

In Quadrant 4, the driver is Big Data. The system is a community platform for sharing those data and the stories that they tell. There is a data tsunami coming — we will all be monitoring our local air quality and the water we drink in much the same fashion that many of us monitor our heart rate and other biometrics.

Across these four quadrants, the drivers are going to operate in an interactive way. For example, data-based community pressures can be expected to influence behaviors in both private governance and public governance. Autonomous systems, to the extent that they are well designed and effective, can be expected to reduce the demand for the other three drivers. Effective private governance systems should in theory reduce the need for intervention by public governance mechanisms.

What is emerging will ultimately influence the shape of the governmental role going forward, and that’s ELI’s traditional area of engagement, partly because law-based systems in Quadrant 1 can either be barriers to or enablers of the evolution of the other three quadrants. Work needs to be done to ensure that law provides a supporting system for the changes we value.

But these other quadrants have attributes that relate to and may draw from government experience, in that they are in effect rules-based systems, built on contracts, preferred-sourcing criteria and sustainability criteria — even the social license to operate. The accountability mechanisms, ranging from denial of capital or market access, to product deselection, to public or social media rebuke, are different but nonetheless relatable to government compliance assurance systems.

Our moderator today is David Rejeski, who is the head of the technology initiative at ELI and came to us from the Woodrow Wilson Center, the Environmental Protection Agency, and the White House.

David Rejeski: I’m going to start with Michael Vandenbergh, who is the David Daniels Allen Distinguished Chair of Law at Vanderbilt and a leading scholar on private environmental governance. He is the author of Beyond Politics: The Private Governance Response to Climate Change. Mike also runs a project at Vanderbilt on how to reduce carbon emissions at the individual and household level.

Michael Vandenbergh: From my perspective, the great ideas out there are only great if they can also be institutionalized. I would like to see more focus, particularly from an organization like ELI, on the institutional strategy that would push companies and communities toward a more sustainable, lower-carbon future. But what kinds of institutions are needed to move technology in the right direction? We can have all the best technologies in the world, but if the incentives are not right, companies won’t deploy them.

Much of what guides the way people think about the environment is worldview. How do you account for the effects of worldview on behavior in striving toward sustainability? That is a challenge that has bedeviled the Intergovernmental Panel on Climate Change. I don’t know that you’re going to solve it, but a sophisticated incorporation of some kind of behavioral component would be a useful addition to the decisionmaking model.

David Rejeski: Ann Condon is now an ELI visiting scholar, after a long career at General Electric focusing on its chemical stewardship program and the company’s sustainability work.

Ann Condon: Among my challenges at GE was figuring out how to meet our greenhouse gas goals, how to green our supply chain, and how to deal with reporting on conflict minerals.

Attorneys are comfortable with public law. We’re even comfortable with private environmental governance. But Big Data, additive manufacturing, blockchain — it is all happening so fast. Lately people have been telling me how blockchain is going to solve sourcing traceability problems. But we need all four of Scott and David’s quadrants to enable a tool like blockchain to work. Because if you don’t have standardization in deploying it, there will be four thousand blockchain traceability systems: one for every platform.

Take the conflict-free sourcing initiative which involved a lot of work to standardize the data gathering. That was critical to ensure the material traceability efforts were usable. These common data fields have to be negotiated, which requires collaboration. Collaboration in turn requires organizations that can facilitate that standardization. It also requires a push from the regulators.

If we don’t figure it out, we are going to look back in five or six years and realize blockchain will be just like other initiatives, RFID comes to mind, that showed great promise but haven’t solved the problem. If you can get the data right, it can be very powerful.

David Rejeski: Michael Mahoney is Pfizer’s vice president and assistant general counsel, and chief environmental health and safety officer and compliance counsel. He’s also a member of the Environmental Sustainability Steering Council and the past chair of the Environmental Law Committee of the New York Bar Association.

Michael Mahoney: I started at Pfizer as an environmental engineer in the mid 1980s. I spent most of my time helping the company comply with command-and-control regulations. It was never perfect because of the nature of the way the regulations were promulgated, but we worked hard to comply.

In the mid 1990s we witnessed the birth of private governance. I was very fortunate to be involved in the drafting of our environmental, health, and safety standards. We did it because we thought it was the right thing to do.

In 2006 we developed our environmental sustainability program. We went to management and sold it as the right thing to do. But we also sold it as a means to differentiate Pfizer from our competitors.

Today, we are beginning to see customers, including large governmental buyers, become more interested in our environmental footprint. Those companies that have good programs are going to be selling to these entities and those that don’t will not. The market opportunity is developing very quickly. It’s driving companies to action. But to succeed a company needs to have a solid program, including how it manages its supply chain.

We need a system where all these drivers are working in harmony. That would be the most efficient and effective. But in the meantime we should leverage those drivers for the opportunities they currently present.

So I would emphasize the market as a driver. Customers are demanding sustainability throughout the supply chain.

David Rejeski: Adrienne Hollis is both an environmental toxicologist and an environmental lawyer. She works on environmental justice issues and is director of federal policy in the D.C. office of WE ACT for Environmental Justice. I’ll ask her to give the perspective from a community level.

Adrienne Hollis: David and Scott’s article resonates with me both from a scientific perspective and also from a legal perspective.

Because I work with environmental justice communities, I look at it through that lens. In a perfect world, we would be touching all four quadrants equally. But there are some factors that people normally don’t take into account in such an analysis, and that’s the trust of the community.

In Quadrant 1, the role of government is to promote the will of the majority while protecting the rights of the minority. That really hasn’t happened, at least not recently. In this administration we see a shift away from legislation designed to protect the public. Privatization is also a big issue for communities. It is not just an economic issue, but an economic justice issue as well.

I want to talk about the need for community science. We used to call it citizen science, but it is really community science because we’re talking about exposure to everyone. Perfect examples are the immigrant camps and the people who are situated next to facilities that may be emitting toxic substances.

But I need to speak about the fact that science is under attack. It makes me question the fourth quadrant. Until we can reach a point where we respect the data, that quadrant is definitely at risk. The whole theory of the four quadrants is at risk.

David Rejeski: John Lovenburg is the environmental vice president for BNSF Railway. His portfolio includes remediation, hazardous material sustainability, environmental litigation, compliance, environmental permitting, agency engagement, environmental engineering, and environmental policy.

John Lovenburg: The four quadrants appear to be an accurate representation of what we are seeing in the environmental space. A good example of where integration is occurring is in data.

For instance, there are now very active community air monitoring programs. High school students are doing air monitoring. Agencies are doing mobile air monitoring. The result is a real explosion of data.

While there are obvious opportunities, from industry there is some initial reluctance. So from a public governance role, there is a real value in the agencies building the confidence of all of the stakeholders to trust the data.

I was a consultant during the 1990s and 2000s. We spent a lot of money collecting highly precise, very expensive data points. With current technologies, we’re collecting hundreds of data points very cheaply and very rapidly. As we get our arms around that data, the level of confidence among all stakeholders is going to go up.

As to private governance, for BNSF, environmental management systems are our way of internalizing all of the external systems — best practices, audits, corrective actions. I tell my team that if they find an error, use that as an opportunity to find potential system-wide fixes. This flips the usual attitude on its head. We are looking for errors so we can turn them into positives for the whole organization.

This is one way that private governance takes governance to an nth degree above an external system alone. For us the ratio is probably twenty to one: faults that we find internally through audits and other means versus problems a regulator may find during an inspection.

So in terms of what’s missing from this ecosystem of drivers, in Quadrant 2, included is managing risks, but there is also opportunity in discovering and handling issues.

A good example is TCFD, the new carbon reporting framework put together by the G20 nations. TCFD, the task force for climate-related financial disclosure, looks at opportunities and risks around climate. It is the first model that I have seen that dispassionately looks at policy, carbon pricing, physical risks, and impacts on markets.

Balancing risk and opportunity would be a good addition to the framework.

Second, I would add sustainability and sustainable solutions as the best way to find common ground.

I am co-leading an initiative with the railroad around electrification. It is a win-win because electric vehicles have triple the efficiency of internal combustion vehicles. That means using two-thirds less energy to move trains, trucks, cargo-handling equipment, et cetera.

Our team is charged up around BNSF’s electrification initiative because it is a sustainable solution. We eliminate onsite emissions, because we get electricity from offsite power plants. We can cut operating costs by two-thirds. We’re going to use fewer resources. We’re going to reduce our carbon footprint. That’s a perfect example of a sustainability win-win solution, and why I would add it to this framework.

David Rejeski: Paul Hagen practices both U.S. and international law as a partner at Beveridge & Diamond. He also works with corporations and trade associations.

Paul Hagen: Most of my work is in the product stewardship space. Our orientation creates a race to the top, because there is often a market access driver. The EU requires the electronics sector to fully understand what is in their products and to create a timeline for eliminating certain restricted substances. Today, whether you’re selling products in Vermont or Beijing, you have to orient yourself around global market access requirements and supply chains. We’ve seen what happens with conflict minerals as a for instance across the economy.

But the legal infrastructure that we’re working with is cumbersome and often antiquated. If we look at the four quadrants, and the evolution of data in driving technology solutions, in promoting environmental governance, those don’t operate in a vacuum. They operate in a world with disparate countries’ laws and international legal frameworks.

I spend a lot of my time working on the circular economy. Companies are committed to extending the life of products through repair and reuse. By reusing products, materials, and recycling, we really take advantage of those environmental and economic benefits at scale. Some of that is being driven by the EU, but a lot is driven by scarcity and efficiency interests.

Unfortunately, we are moving used and end-of-life products across international borders under a 30-year-old environmental treaty that the United States has not ratified. I have sat in the back of the room with U.S. government and other non-party observers to the Basel Convention on hazardous waste, watching as other governments decide how we’ll classify and move used products across frontiers.

One of the areas the circular economy focuses on is the reuse of plastics. In an effort aimed at minimizing plastic pollution, Norway has proposed bringing a larger universe of waste plastics under control under the Basel Convention. For parties to the Convention, it is a question of controlling certain shipments. But because the United States is a non-party, that’s really an import and export ban for us. The United States is operating in a legal framework that’s entirely different from the other 185 countries because we are a non-party.

It is hard for companies to innovate and for NGOs to collaborate if the legal infrastructure is not keeping up. So don’t overlook the importance of that legal quadrant. It’s the one on which these other dynamics can be built and operationalized.

David Rejeski: It’s time to bring in the audience, and I know Douglas Keare has a question.

Douglas Keare: I was pleased that the last three speakers focused on risk in the system. The consideration of risk in private-sector governance, whether financial or reputational, is nowhere even in the ballpark of the kinds of risk we should be paying attention to.

There are two factors that motivate me to stress this. The first is an excellent article by Henry Kissinger in The Atlantic, which is spurred by the headlong rush into artificial intelligence. It concentrated on the fact that science and technology, each motivated by their own monsters, are rushing to the future without restraint because what we have is an exponentially widening gap between what science and technology are discovering and our ability to understand it, let alone manage it or control it, and that’s not sustainable. The second factor is that some of the directions they’re rushing in are not desirable.

I am in favor of linking opportunity and risk. Maybe the way to look at the diagram is that it ought to be a pentagon rather than a square. The fifth section should be managing or identifying and avoiding existential risk but doing it within an opportunity framework such that a new technology emerges somewhere in the system.

Dave Rejeski: Gary Marchant of Arizona State University raises what he calls the pacing problem — to what extent can the legal framework of Quadrant 1 keep up with the rate of change — whether the instrument of change is AI, or blockchain, or anything else. Every time we discuss the issue of science and tech and the existential risks they raise, we find we are unable to figure out how to make this system change. Michael Lewis in his new book The Fifth Risk raises the issue of the way governments deal with existential risk.

Michael Vandenbergh: The overall goal of the system is to avoid catastrophic risk. Any chart like this assumes roughly an equilibrium status moving forward with growing GDP. If you take that away, then boom, everything goes haywire.

In terms of transitions, you can argue about what the Founders thought concerning how information would flow in a democracy and how that has changed. With today’s technology, if you wish you will only hear one side of what used to be an impartial presentation of the day’s events. That makes structuring a democratic discourse on environmental protection difficult. The very ability of governance systems, whether public or private, to function is being directly affected by developments in technology.

David Rejeski: Dan Hillis, who was one of the people who invented parallel computing, recently wrote an article titled “The Enlightenment is Dead, Long Live the Entanglement.” His thesis is that we are all essentially entangled with one another — through our machines and our organizations. That is going to lead to behavior that is difficult to predict and govern and to indeterminacy in a legal system.

Michael Vandenbergh: Many of us may not know that household electricity use has gone down in the last couple of years for the first time since World War II. A recent economics paper shows that the decline correlates almost perfectly with the introduction into the market of attractive, low cost LED light bulbs. Why did that happen? It happened partly because of government.

Ann Condon: “Ban the Bulb.”

Michael Vandenbergh: Indeed — government had a role but also companies like Walmart said if you can make one under $10 that looks good, we’ll sell it. So the manufacturers played a role as well. None of this was anticipated.

Paul Stern: I’m Paul Stern, working nowadays at the Social and Environmental Research Institute. But after a long career at the National Research Council, where I was a director in a number of projects in some of these areas, I wanted to focus on the issue of data in Quadrant 4 and the question about whether we’re getting a tsunami of information. Data are useful when they’re trusted and trustworthy. Data producers may be biased. They may be perceived to be biased. You want good data and you want trust for good data in order to inform decisionmaking.

I see this as an institutional challenge. How do you design institutions that allow the various parties interested and affected by decisionmaking to have data that they trust and that they ought to trust?

John Lovenburg: Let’s talk about corporate use of data. I received an updated number from our technology VP just two days ago. We generate 35 million readings per day from the sensors that we have on the railroad — thermal, acoustic, hyperspectral, cameras on locomotives, cameras in yards, drones flying over track. We use these sensors for safety, efficiency, and environmental purposes.

After track construction, you plant native vegetation to restore the ecosystem. The way we used to do it is to hire a biologist who would over the course of a week look at 30 miles of new track. Now we are flying a drone in ten minutes over the same area. It uses infrared cameras that plug into agricultural algorithms — and I can get quantitative data on restoration progress.

The issue of trust comes up when there are shared data. With air quality data, there can be skepticism among multiple parties that there could be the needed level of trust. With time, we’ll build some confidence. When you have overlapping data that produce the same answer, you start building confidence in the system. That speaks to the role agencies can play, to step in and help multiple parties adjudicate that data and build confidence.

Adrienne Hollis: On the issue of trust — people are going to have their own agendas. When communities are able to participate in data gathering, and to develop guidelines, that generates trust.

There are now personal air-quality monitors that update in real-time. In practice, ten people in the same community who were exposed to the same pollution plume and suffered adverse health effects would have a response to an industry monitor that says there was no release above the government standard.

So whom do you trust? Do we need to get people to agree that there is one particular trusted source of information that we all must acknowledge? Or do we say there’s a certain protocol that must be followed in order for data to be seen as valid?

Scott Schang: I’m Scott Schang with Landesa and formerly with the Environmental Law Institute. One point and two questions.

I wonder if we’re missing a driver in the form of private capital from philanthropies and unaccountable political donations that these days has such a force.

I wonder what this would look like if you did it in a developing world context. Is it the same map? Maybe it is but I’m not sure. Will it look like this in China, India, Myanmar, and Malawi? It might be interesting to ask that question, because it might inform our thinking about what our system looks like.

And then, finally, resources. What happens in each of these four quadrants when you resource them or don’t resource them? I would argue the only one of the four that is really resourced is technology. The other three, including private environmental governance, are largely starved because companies aren’t really putting much money into it.

Ann Condon: Can I weigh in on the developing country aspect? Because the model, maybe not the specifics of AI or Big Data, but of sustainable business tools, is actually even more important in many respects in the developing world because some of the other institutions aren’t very strong. There may be different tools in the buckets, but the concept is right.

Scott Schang: Where I work in the developing world, it’s the government that is acting as the business promoter, trying to get land to companies, and the companies are being asked to act like the government by providing basic social services and the environmental rule of law. So the roles have been exactly swapped and I wonder if that’s where we’re headed in the United States as well.

Holly Elwood: I’m Holly Elwood. I work at EPA. And for me, looking at the quadrants, I see my work very much 100 percent in the left quadrants. We are thinking of it as purely where the private sector lives, but there’s a really strong role for the federal government there. And as purchasers, as developers of product sustainability standards that we use to meet our sustainable procurement requirements, that’s a place where trust is absolutely vital.

I am glad you brought that topic up because without it no one will use those standards or eco-labels and we won’t be able to get to an agreed understanding of what we are trying to make happen in the market. I see a lot of work happening in that space right now and a lot of engagement from the private sector.

Michael Vandenbergh: I couldn’t agree more. You could argue that the disclosure of the Toxics Release Inventory data was one of the drivers for what you see in the private sector. As to trust, maybe this is a place where the public and the private side come together. Maybe it is time for a certification and standards system that applies to community-based data. That’s a place where the private sector might play a role if the public sector can’t.

Paul Hagen: Holly raises an excellent point in that this is a domain where there is a lot of evolution, a lot of action, particularly in the green-electronics space. There are expanding product certification schemes. There are governance issues. There are green procurement requirements.

The government is learning and adjusting. The private sector is learning and adjusting. The NGO community is trying to figure out how to come up with what Scott has described as the optimal solution space. Lawyers are not used to dynamic systems, where you have steady adjustments over time rather than etchings in stone.

Unfortunately, even the best private environmental governance schemes are operating at a scale that might be noteworthy but ultimately is insufficient.

Instead, we need to appreciate the role of governments. If we can come up with an approach with all the OECD governments, for example, it might take a little bit more time, but it would operate at a larger scale. Instead of letting one jurisdiction, for example, set the energy-efficiency standard for a product and everybody else has to fall in line because it’s a global marketplace, there is more of a collaborative process across multiple OECD countries. And then we could roll that standard or framework into the developing world.

David Rejeski: The trust issue actually goes through all four quadrants. I had an interesting discussion with somebody at the Defense Advanced Projects Research Agency. DARPA has a group focused on explainable AI. One of their big worries is the machine learning algorithms are starting to make decisions that they can’t explain to the humans. Do we trust the algorithm? If you’re the decisionmaker in a company or you’re a CIA analyst, it’s a huge issue of whether this machine learning algorithm has told you something you didn’t know.

Thomas McHenry: I am the dean and president of Vermont Law School. This has been a fascinating discussion. It makes me wonder. Three quarters of our students come to Vermont Law School because they’re interested in pursuing careers in environmental law. What should we be teaching to allow students to take advantage of this paradigm?

Ann Condon: I have hired many legal interns over the years. Teaching environmental law is an important foundation, but a lot of folks that I see coming out of these very specialized environmental programs do not understand basic contracts. They don’t understand commercial relationships, including antitrust law. If lawyers don’t have that essential business background, they can’t integrate the environment into core business strategies.

Michael Mahoney: I would add that building a business case is vital to embedding sustainability in an organization. It is important that lawyers have the fundamentals in business and in finance. Students coming out of a sustainability background can really move a program if they have the tools. They can work with the right people in the company, explain where the trend is going, then make a business case. But lawyers coming out of school don’t have those basic tools. I didn’t when I graduated. I often think of going back and getting an MBA, because I think it is important to marry that with law.

Michael Vandenbergh: I published a short piece called “The New Private Advocacy” last fall that is directed at private lawyers. It is designed to do what you are saying. This is not just happening in law. I talked to a manager of one of the big environmental groups not long ago, and he told me he had to find a bunch of new people who understand the supply chain contract for bananas. It wasn’t enough to know which Senate committee did what. A complete lawyer today is someone who understands the public and the private side of environmental governance and knows all those different instruments.

Cross-training is really helpful. We teach a class with MBA students and law students together. They have to figure out how to interact with one another. That helps because their thinking patterns are so different.

Monica Medina: I now run a small environmental newsletter called Our Daily Planet, but I was in the government for a long time in and out many administrations.

The world of weather data is highly advanced and is a useful model. There may be lessons that could be learned from the way the World Meteorological Organization has pulled together science and business and created products and tools that we all know and use. The European model is more accurate potentially than the U.S. model, but the point being that there are a lot of data that have been collected for a long time on weather. The data sit in the government but are shared very well. There is an infrastructure in place to allow government-to-government sharing even with governments we don’t get along with.

Dave Rejeski: One of the earliest citizen science projects was connecting citizen meteorologists together via the telegraph. That was the Victorian Internet. It led to breakthroughs in forecasting. The Weather Service has been able to take legacy data from a century ago and integrate it with current data and use that for prediction. Weather forecasting is an area to look at for models, for anyone who is trying to learn how to do data integration, aggregation, and basically how to use distributed networks of both human and other types of sensors including satellites.

Unidentified Questioner: I have a question on the impact of what’s happening in Quadrant 1 on Quadrant 2. I speak as someone who spent the last 28 years in Quadrant 1. In the United States, as resources are being radically cut at the federal level and even as the legitimacy and role for environmental regulations are being questioned, will that have an effect on the demand in Quadrant 2 on the private side? I would like to think not­ — that reputational risk and financial risk will grow regardless of what is happening again at the national level in Quadrant 1. But am I being too hopeful?

Ann Condon: Standardization may drive the process here. When there are lots of conflicting requirements, product manufacturers will say, “Now we need to standardize.” Because if you have the Ohio rule and California rule and the Beijing rule, it almost becomes impossible for a manufacturer to figure out. If the federal government isn’t going to do it, then we need to have a private effort. That is when you get the push for private environmental governance.

Paul Hagen: Most of the folks we work with say they like a robust regulator because they can occupy an important part of the conversation. Even with the most well-regarded companies or NGOs, there’s always a conversation to frame.

John Lovenburg: We often get customers who will ask for carbon emissions data. We normalize our emissions by weight transported. If they want it normalized by volume, there is a disconnect. A different language is being spoken.

So BNSF is involved with EPA SmartWay and the Smart Freight Centre, all striving to come up with a single way of normalizing supply chain transportation carbon emissions.

Dave Rejeski: I spent yesterday with the Food and Drug Administration, which was having two days of meetings to create an enabling environment for the next 20 years of protein development. I was stunned with the foresight that FDA had. They’re listening to technology developers and creating an enabling environment. That could be setting standards, thresholds for data collection, whatever.

Michael Mahoney: If industry sees a reason to standardize because they see that the environment needs to be better protected, they can go a long way toward building the framework for a program that the government might step in and implement more widely. This is thus a great opportunity for partnership, where the industry can do some of the work until the government has the information and resources it needs.

Michael Vandenbergh: Lawyers can serve an enormously important role. One of the greatest benefits we bring to the table is that we’re comfortable working with environmental engineers and physicists and others. That’s a role ELI can continue to play as the field goes from being essentially a subfield of administrative law to something much broader.

We might think here as an institution about how to create convening settings where people from lots of different disciplines can work on common problems. This conversation was a start. TEF

On the first Earth Day, in April 1970, Senator Edmund Muskie called for “a total strategy to protect the total environment.” We have had time to pull this off — nearly a half century after Muskie’s clarion call — but have failed. Yes, gains in environmental quality have happened, but as time has passed, we have witnessed the emergence of global level, existential threats. The human race is pushing on or through what the Stockholm Resilience Center has called “planetary boundaries.” The old approaches have failed. But what would a new paradigm, built on lessons learned, look like?

Recycling Increases in Red States, but Blue States Still Recycle More
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
Linda K. Breggin

What does a decade of survey data tell us about household recycling trends? Nationally, recycling rates increased by seven percentage points from 2005 to 2014 for households that recycle plastic, paper, cans, and glass.

Researchers Kip Viscusi, Joel Huber, and Jason Bell, who mined data collected from over 170,000 households in an effort to understand the factors that influence recycling behavior, were surprised by the upward trend. They reasoned that states did not enact major changes to their laws that could account for the increased recycling rates during the decade studied. Furthermore, economic factors such as the 2008 recession reduced Chinese demand for recycled materials, and reductions in the cost of producing new plastic (due to increased fracking) all limited states’ financial capacity to support recycling.

Despite these impediments, the analysis shows that recycling behavior did increase overall, although rates varied based on the type of material and geographic region. For example, can recycling rates were the highest (74 percent in 2014), but plastics recycling rates increased the most (11 percent). The researchers explain that the relative rates are affected by numerous factors, such as how often a household uses the material, the effort required to recycle, and whether local policies support recycling of specific materials. They also identified market factors that affected variations, such as the increased popularity of plastic water bottles.

The Northeast achieved the highest recycling rates — followed, in order, by the West, Midwest, and South. But despite leading the pack, rates in the northeastern and western states were fairly stable, whereas rates in the Midwest and South grew substantially. Several factors influenced these regional variations including, but not limited to, the type of state legal regime and political party control.

For example, even though most states have some type of recycling law — almost all of which were enacted before 2005 — the stringency of the statutory requirements affected rates. The seven states with mandatory recycling laws, Connecticut, District of Columbia, New Jersey, New York, Pennsylvania, West Virginia, and Wisconsin, had the highest recycling rates — 67 percent on average. In contrast, the 21 states that either have no recycling laws — or laws that specify a goal but neither impose a mandate nor require plans or recycling amenities — had much lower rates. These states, which are located in all regions of the country and include Wyoming, Indiana, Delaware, and Montana, had an average recycling rate of 41 percent. The researchers report that the greatest rate increases were in states with the least stringent laws, even though the overall rates were highest in states with the most stringent laws.

In addition, states in which both the governorship and the legislature were controlled by Democrats recycled 30 percent more than in states controlled by Republicans. According to the researchers, political party control is associated with several factors that in turn affect recycling rates, such as the “prevalence of pro-environmental attitudes, population density, and state government spending levels.” The researchers conclude that their finding “is consistent with the emphasis by Democrats on government actions to further policy goals, contrasting with Republicans who value reliance on individual responsibility.” And, although Democratic states had the highest recycling rates, Republican states had the greatest increase in rates.

In what ways can these historical trends inform recycling efforts moving forward? According to Viscusi, the data indicate that amendments to state laws are unnecessary, as the statutes are broad enough to allow for program and policy changes that can make household recycling easier, such as curbside pickup and convenient drop-off locations. He further suggests that efforts should focus on states that do not have high enough levels of recycling, such as those in the South, which he concludes “have not hit a plateau” and have the “greatest opportunities for gains.” But, is increasing recycling rates in the South easier said than done?

Viscusi offers an approach: “Totally ignore the environmental benefits and focus on the economics.” The Viscusi team’s prior research found that “sometimes recycling programs pass the cost-benefit test and sometimes they don’t,” but in many cases recycling can be a “money maker.” He also queries whether corporations may appreciate robust recycling programs that may reduce the growing pressure to reduce or ban the use of plastics altogether.

Policymakers and stakeholders will undoubtedly rely on this study in shaping future recycling initiatives. The research’s value highlights the need for more empirical and longitudinal studies to inform a range of state and local environmental policies.

Recycling increases in red states, but blue states still recycle more.

Mulch Ado About Waste Handling: Community Composting Takes Off
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
Linda K. Breggin

Community composting is heating up. According to Brenda Platt, codirector of the Institute for Local Self-Reliance, it is “flourishing” around the country — and Biocycle magazine dubs neighborhood compost piles a full-fledged “movement.” Composting, the natural process of recycling organic waste into nutrient-rich soil amendments, can occur on a variety of scales. Community composting projects fill a key niche — larger in scale than individual backyard composters but smaller in scale than the typical commercial-scale operation.

Localities around the United States are looking for ways to encourage a variety of composting approaches in an effort to reduce waste disposal costs and mitigate greenhouse gas emissions from discarded organic materials in landfills. According to EPA, about 50 percent of municipal waste in the country is compostable, such as yard trimmings, paper, and food scraps. Localities have made considerable progress in composting yard trimmings, but only about 5 percent of food waste is recycled.

While large-scale commercial composting facilities are necessary to reach the level of organics recycling that many localities hope to achieve, smaller-scale efforts have an important role to play. Natural Resources Defense Council’s Darby Hoover explains that community composting is an important part of the organics recycling infrastructure — along with backyard and commercial-scale operations — because it diversifies the system, making it more flexible and resilient to change.

ILSR has developed a hierarchy of preferred ways in which to “reduce food waste and grow community.” Similar to EPA’s Food Recovery hierarchy, it emphasizes that source reduction and edible food rescue are preferable to composting. But, it also prioritizes various types of organics recycling efforts, including composting, from most to least preferred: home composters; small-scale, decentralized operations; medium-scale, locally based operations; and centralized facilities. The last serve a large geographic area, typically handle more than 100 tons per week, and produce compost that may leave the community in which it is generated.

The hierarchy highlights the “importance of locally based composting solutions as a first priority over large-scale regional solutions.” Platt contends that a key reason to prioritize neighborhood composting is that it “raises awareness” within communities. Specifically, such programs can empower and educate communities about the food system and resource stewardship, as well as lay the foundation for a future in which composting is commonplace.

In their study, the “State of Composting in the U.S.,” the co-authors (who include staff from Biocycle and ILSR) explain that community composting helps ensure that organic waste is locally recycled and that any compost is used to enhance local soils, to support community food production and security, and to contribute to green infrastructure. Community composting also can provide training and employment opportunities.

State and local policies and regulations can encourage community composting in a variety of ways, including through grants, loans, and technical assistance. Platt suggests, however, that policies also can have the opposite effect. She points to municipal contracts that provide an exclusive right to conduct all organics hauling in a particular area to a specific hauler, thereby deterring micro-haulers who support community composting.

In addition, community composting can be supported by local and state policies intended to promote organics recycling more generally. These can include requirements for use of locally produced compost in public landscaping and infrastructure projects, various forms of organics diversion mandates, disposal facility surcharges that fund composting, and “pay as you throw” measures that charge for disposal based on the amount of waste.

State regulation of community composting projects varies considerably, as some states exempt small-scale operations, which can include community composting projects, while others require them to meet standards related to odor, water pollution, pathogen generation, and quality of product. Furthermore, some states simply do not address composting, according to Platt.

Local regulations also are a factor in establishing composting-friendly conditions. For example, zoning ordinances that allow community gardens, urban farms, and others to compost as an accessory activity to growing food can foster community composting.

Regardless of the content of state and local regulations, Platt emphasizes the need to ensure that community composting projects do not risk “giving composting a bad name.” She encourages well-regulated systems and a “clear, supportive regulatory pathway” for community composting projects.

State and local governments should step up organics recycling and embrace community composting as an integral part of their waste-handling efforts.

Mulch Ado About Waste Handling: Community Composting Takes Off.

Restore the Chesapeake
Ridgway Hall - Chesapeake Legal Alliance
Chesapeake Legal Alliance
Current Issue

The vast bay and watershed include the largest estuary in the country. Efforts to restore its vastly degraded water quality involve a commensurately large response by the Bay States, the federal Environmental Protection Agency, local governments, and the public.