A Convention That Is Perpetually Reborn
Author
Rolph Payet - Basel, Rotterdam, and Stockholm Conventions
Basel, Rotterdam, and Stockholm Conventions
Current Issue
Issue
5
Parent Article

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

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

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

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

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

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

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

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

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

Reimagining the Future
Author
John Pendergrass - Environmental Law Institute
LeRoy Paddock - George Washington University Law School
Environmental Law Institute
George Washington University Law School
Current Issue
Issue
4
Reimagining the Future

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

———

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

 

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

‘The Community,’ Equity, and Justice
Author
Stephen R. Dujack - Environmental Law Institute
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
2

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

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

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

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

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

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

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

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

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

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

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

Be Eco-Aware or Be Square

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

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

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

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

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

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

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

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

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

—Akielly Hu, Associate Editor

‘The Community,’ Equity, and Justice.

Out with the Old, in With the New
Author
Scott Fulton - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
1
Scott Fulton

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

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

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

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

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

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

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

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

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

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

Out with the Old, in With the New.

ELI Report
Author
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
6

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

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

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

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

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

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

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

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

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

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

 

Institute and partner work with Bozeman on water scarcity

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

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

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

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

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

 

Food waste initiative strives to improve community composting

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

The Judiciary accepts climate science, ELI study finds.

Food Waste Co-Digestion at Water Resource Recovery Facilities: Business Case Analysis
Author
Carol Adaire Jones, Craig Coker, Ken Kirk, and Lovinia Reynolds
Date Released
December 2019
Food Waste Co-Digestion at Water Resource Recovery Facilities: Business Case Ana

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

New ELI Report Illustrates Opportunities for Materials Recovery and Reuse in the Retail Sector
May 2018

Simply by virtue of the gas inside them, discarded aerosol cans are treated as hazardous waste under the Resource Conservation and Recovery Act (RCRA). But these same cans, when disposed of by consumers, are treated as household solid waste, meaning they can be managed or recycled differently, including ways that involve substantial steel and aluminum recovery from municipal waste management.

Google Saving Millions Via Materials Reuse
Author
Kate Brandt - Google
Google
Current Issue
Issue
1
Parent Article

During the 20th century, global raw material use rose at about twice the rate of population growth. Society’s demand for resources is already equivalent to what 1.7 Earths can provide. And the World Economic Forum estimates that by 2030 we are going to have 3 billion new middle class consumers. These sobering statistics highlight the pressing need to reevaluate the economic model that has been in place since the industrial revolution.

At Google, we believe global businesses should lead the way to driving a 21st century model in which people’s lives are improved while reducing dependence on primary materials and energy from fossil fuels. And we believe this can be done in a way that makes business sense, providing economic return, community benefits, and a restored natural environment.

In 2015, Google established a goal to embed circular principles into the fabric of our company’s infrastructure, operations, and culture. To achieve this goal we are focused on three strategies: Utilizing energy from renewable sources, designing out waste from our operations, and thinking in cascades.

Today we are the largest corporate renewable energy purchaser in the world. We’ve signed contracts to purchase 2.6 gigawatts of renewable energy — equal to taking over 1.2 million cars off the road — and this year we will reach 100 percent renewable energy for our operations.

In addition to our renewable commitment for our operations, we’re working to help our users adopt clean energy themselves with tools like Project Sunroof, which is now available in all 50 states and Germany, and uses Google 3D Earth imagery to calculate each roof’s solar energy potential to determine how much a home could save by installing solar panels.

We’ve also been focused on designing waste out of our systems. In 2016, across our 14 global data centers, we diverted 86 percent of waste from landfills and last fall we announced a new commitment to zero waste to landfill for all our data center operations.

A major strategy for achieving this goal is how we manage the servers that are at the heart of our data centers. These servers deliver your Gmail and favorite YouTube videos but they are also a great example of the power of deploying circular economy at scale.

First, we focus on maintenance. Google’s process for data center repairs enables longer life expectancy of servers. We aggressively refurbish and remanufacture components: in 2016, 36 percent of servers deployed were remanufactured machines. We also redistribute components through secondary markets and sold over 2 million units in 2016 alone. And 100 percent of what is left gets recycled. Through this approach, we are saving hundreds of millions of dollars per year and significantly decreasing the amount of virgin material needed to operate our data centers.

Our food team has also been looking for ways to reduce waste before food hits the plate, since feeding more than 70,000 people around the world breakfast, lunch and dinner is a pretty big undertaking. In April 2014, we formalized this effort by partnering with LeanPath, a technology that helps us understand exactly how and why food is being wasted in order to improve our process. Today we have 129 cafes participating in the LeanPath program across 11 countries. Since the start of the partnership, these efforts have saved a total of three million pounds of food.

As we know, to truly enable materials to cascade through the loops of the circular economy we must focus on what’s contained in the materials we are choosing. According to the Environmental Protection Agency, there are approximately 85,000 known chemicals in the world. 21,000 of them are registered on the Chemical Substance Inventory mandated under the Toxic Substances Control Act, and only six are federally regulated. That means the buildings in which most of us spend roughly 90 percent of our waking hours are built using materials with unknown impacts on human health and performance.

In 2016, Google and the Healthy Building Network launched Portico, a first of its kind building materials analysis and decisionmaking tool. For the first time, everyone involved in a construction project, from owners and designers to contractors and manufacturers, could work together to leverage the data in Portico to find healthy materials and improve indoor environments.

At a time when we recognize climate change and resource constraints as two of our most significant global challenges, creating effective solutions will involve a complex mix of policy, technology, and international cooperation. At Google we are working to utilize circular economy principles as a transformative strategy for people and the planet but we also know that we’ve only just begun to realize what is possible.

 

Kate Brandt is Google’s lead for sustainability and previously served as the nation’s first federal chief sustainability officer.

National, State Policies Drive Circular Economy
Author
Mathy Stanislaus - World Resources Institute
World Resources Institute
Current Issue
Issue
1
Parent Article

First, a quick primer of why a circular economy approach matters: the extraction of raw materials grew from 22 billion tons per year in 1970 to 70 billion tons per year in 2010. If this trend continues, raw materials could be required to increase by as much as three times by 2050.

At the same time, over half of the yearly material inputs into industrial economies become waste within a year, with a $4.5 trillion annual loss of value by 2030. Moreover, recent studies have concluded that a circular economy approach could reduce the gap of achieving the Paris Agreement by 50 percent.

While the economic and environmental promise of a circular economic approach has been getting some traction in the United States, what are realistic near term policies to accelerate such a transition? The U.S. Business Council for Sustainable Development is working with Ohio, Tennessee, Michigan, and Minnesota to advance secondary materials transactions.

However, the definition and interpretation of whether an interstate transfer of secondary materials is considered a transfer of feedstock for manufacturing or for waste management has become a barrier to secondary materials utilization. For example, Ohio’s regulations differ from adjacent states. One immediate activity is to harmonize the definitions among adjacent states to foster secondary materials markets, with the necessary transparency requirements.

A regulation adopted by EPA in 2014, the Definition of Solid Waste Rule, is intended to incentivize the utilization of secondary materials in manufacturing while protecting against mismanagement in the recycling system. The rule removes certain materials from being designated as a hazardous waste to foster reuse back into the manufacturing production process from which it was generated (e.g., closed-loop recycling) and remanufacturing of chemical solvents. Separately, the rule also clarified that the recycling of metals is for the purpose of producing valuable products.

The rule is projected to save as much as $59 million per year. The remanufacturing of solvents alone is projected to reduce greenhouse gas emissions by as much as 344,000 metric tons of CO2 equivalent per year. Having states adopt this rule, and expanding the number of materials covered under this rule, would accelerate the reuse of secondary materials in manufacturing, save money, and further reduce greenhouse gas emissions.

More than 20 states now have “extended producer responsibility” laws for e-waste in an effort to shift some of the end-of-life burden of electronics to the manufacturers. However, the EPR systems have not resulted in the recovery of high quality metals and minerals as feedstock for remanufacturing into electronics products. Currently, while a ton of mobile phones contains about 200 to 300 grams of gold, only 10–15 percent is recycled.

Investment in technology and automation in recycling infrastructure to recover high quality metals and minerals is not occurring with the absence of economies of scale cited as a factor. Moreover, EPR’s cost allocation system has not acted as an incentive for manufacturers to change design. China’s version of EPR has a target of 20 percent recycled content in products including electronics by 2025. Accomplishing this target will require higher quality systems for recovery of metals and minerals from electronics. Could such a target create market drivers to promote investment and innovation for higher quality recovery in the United States?

Tax incentives can drive action. In December 2015, Congress passed into law a permanent charitable giving tax incentive for donating food and extended it to pass-through entities. The tax credit has been cited by food manufacturers as a critical factor to overcome concerns regarding the cost of food donation and liability risks. It has resulted in a substantial increase in food diverted from waste.

Sweden has introduced tax breaks and other fiscal incentives to promote maintenance and repair of durable consumer goods, and as such encourage extending the lifespan of products. A targeted tax incentive tied to a level of product’s recycled content could drive design and investment.

One last and potential far reaching opportunity is carbon pricing. As state-based carbon systems develop, such as California’s pending carbon market system, credit for use of secondary materials (e.g., products using recycled steel avoid approximately 75 percent of CO2 emissions as compared with using steel produced from virgin ore) would assist in financing secondary materials recovery systems and as incentive for product design.

Establishing a public-private process to prioritize policy actions and to establish an implementation strategy would tangibly advance the promise of a circular economy.

 

Mathy Stanislaus is a senior fellow at World Resources Institute and senior advisor to the World Economic Forum focusing on advanced circular economy policies and strategies globally. He headed EPA’s solid waste office during the Obama administration.

The Circular Economy in Action
Author
Thomas Singer - The Conference Board
The Conference Board
Current Issue
Issue
1
The Circular Economy in Action

The companies best prepared to reap the benefits of a waste-free society will be those that understand that the traditional linear model of resource extraction to disposal is ultimately unsustainable. Leadership businesses are powering the transition.

Thomas SingerThomas Singer is principal researcher in the Sustainability Center at The Conference Board, a global business research organization. Singer is the author of numerous publications, including Business Transformation and the Circular Economy.

By 2030, the global middle class will comprise an estimated 5.4 billion people, more than doubling in size from its 2010 total. As a result, companies can expect more consumption and greater demand for the raw materials that go into making countless products. For businesses, the increased purchasing power of a bigger middle class undoubtedly brings good news, but the scenario also brings challenges.

The companies best prepared to reap the benefits of this scenario will be those that understand that the traditional linear economy is ultimately unsustainable. The conventional, age-old approach can be defined as a take-make-waste model, in which raw materials create products that ultimately end up in landfills, waterbodies, or are otherwise disposed. Alternatively, companies that hope to remain competitive in this brave new world should begin paying attention to — and enacting attributes reflective of — the concept of the circular economy. Such a model aims to keep products, components, and materials at their highest utility and value at all times. At its simplest level, the circular economy is about finding ways to decouple economic growth from the use of limited resources.

While a concerted effort by companies can help surmount this demographic challenge, the current way of doing business undoubtedly lacks the efficiency to handle the pressures of an extra three billion middle-class consumers. A surge in demand for goods will stress natural resources and raw materials — ones already over-exploited, such as minerals, oil, water, and lumber. Even greater competition for these resources may cause significant price shocks for raw materials and may disrupt existing supply chains. Consider that “water crises” has appeared in the World Economic Forum’s list of top five global risks in terms of impact in each of the last five years. Continuing down the take-make-waste path will expose companies to significant procurement and supply chain risks, as the resources they depend on grow increasingly scarce.

For most companies, the aforementioned challenges tend to fall into the oblivion of the long-term-risks category. To be fair, some companies with robust strategic planning functions take long-term risks such as these into serious account. But for most, short-termism rules the day. What some call “quarterly capitalism” often sidetracks issues that go beyond a fiscal-year timeframe.

However, while the demographic and resource-use trends fall more into the long-term category, several short-term pressures are making some companies rethink the sustainability of their models. Consider the notable shifts in the types of products and services in growing demand by consumers. Surveys find that almost half of Americans would spend more money on purchases if they could have a guarantee of ethical and responsible manufacturing practices. Two-thirds of global online consumers express willingness to pay more for products and services from companies that make positive environmental and social impact a priority (an increase from 50 percent in 2013). Admittedly, consumer demand for sustainable products is a notoriously tricky trend to measure — does sentiment translate into purchases? — but the overall signals are encouraging.

The most significant pressures for companies to incorporate circular economy attributes into their business strategies are actually coming from other businesses. And these are current, immediate pressures, not future forecasts. Dell, for example, finds that it is not uncommon for requests for proposal from commercial and public-sector customers to include sustainability criteria, which in some cases can account for as much as 15 percent of a bid. As more and more companies establish sustainability goals — such as waste reduction or energy-efficiency targets — these companies become increasingly interested in products and services that can help meet those outcomes. This was a key realization for Kimberly-Clark: some of its disposable and hard-to-recycle products (such as nitrile gloves and single-use garments) stood increasingly at odds with the sustainability goals of its customers. This realization led to the development of the company’s RightCycle project, a circular economy initiative aimed at converting these hard to recycle products into useful new items.

As Dell and Kimberly-Clark have found, pressures from evolving customer needs are nudging companies to rethink their business models and consider alternatives to wasteful linear versions. In a recent survey by The Conference Board, one-third of company executives agree that, compared to three years ago, their companies prefer to be offered services that extend the lifetime of a product rather than having to purchase a new one. A similar percentage of respondents agree that their companies are now more likely to use a model based on pay-per-use of a product. These trends have spurred the launch of several circular economy pilots and business models, including remanufacturing and product-as-a-service businesses, among others. The implications are significant: Companies need to prepare themselves to meet these changing customer dynamics or face the real possibility of becoming irrelevant and going extinct.

The circular economy concept is not new. In fact, early versions of the concept date back to the 1960s, but regulation and national policies to promote this model remain in their infancy. To date, most circular economy initiatives remain voluntary and driven largely by individual corporate efforts, along with support from organizations such as the Ellen MacArthur Foundation. However, some recent and emerging regulatory activity related to the model highlight the need for businesses to continue to engage with policymakers on this front. Companies that stay on the sidelines may find themselves unprepared when forced to make changes to their business models, while companies that have been actively involved in circular economy thinking will have an advantage by anticipating regulation.

The most noteworthy regulatory activity is taking place in Europe. In December 2015, the European Commission adopted a Circular Economy Package to stimulate the EU’s transition to a sustainable manufacturing model. The package consists of an EU Action Plan for the Circular Economy that establishes actions and targets, including the development of standards for secondary raw materials and measures to promote reparability, durability, and recyclability of products. The package includes legislative proposals on waste, which set targets for reduction and establish measures for waste management and recycling. For example, the proposals set common EU targets for recycling 65 percent of municipal waste and 75 percent of packaging waste by 2030. The proposals also set measures to promote reuse and incentivize producers to put greener products on the market and support recovery and recycling schemes.

Several legislative proposals have already been delivered under the EU Action Plan. A few examples include a proposed regulation to create a single market for fertilizers made from secondary raw materials (such as recovered nutrients); mandatory product design and marking requirements to make it easier and safer to dismantle, reuse, and recycle electronic displays (such as computer monitors and televisions); and a proposal to amend the directive that restricts the use of hazardous substances in electrical and electronic equipment (the RoHS Directive).

In addition, several individual European countries are implementing roadmaps and national strategies to promote circular economy activity. For instance, last year The Netherlands and Finland released strategic roadmaps outlining their visions for the circular economy. The Hague’s roadmap includes a goal of a 50 percent reduction in the use of raw materials by 2030. Other countries have been at this for longer, with Germany having introduced a Circular Economy Act in 2012 and Denmark having laid out a national waste reduction strategy in 2013.

Regulatory initiatives focused on the circular economy have also emerged in Japan and China. Japan has had a version of its current Law for Promotion of Effective Utilization of Resources in place since 1991. Its regulatory efforts led to the creation of a number of circular economy indicators and associated targets, including measures of resource productivity and material recycle rate. Tokyo’s targets for 2020 include increasing resource productivity to 460,000 yen of GDP per tonne of resources used (up from the 2015 target of 420,000). The goal also includes increasing the overall material recycle rate to 17 percent (up from the 2015 target of 14-15 percent).

China first introduced circular economy issues as a national development strategy in its 12th Five-Year Plan (2011-15). They remain a significant part of the Five-Year Plan ending in 2020. One of the government’s targets entails increasing the reuse of solid industrial waste as a share of total waste from 65 percent in 2015 to 73 percent in 2020, and 79 percent in 2025. To further promote the growth of circular economy initiatives, in 2013 the government founded the China Association of Circular Economy, a national multi-industry organization. Among the group’s focuses are issues related to industry, agriculture, resource recycling, remanufacturing, and green consumption. In addition, as in the case of Japan, China’s statistics bureau has a number of indicators that the government aggregates to create a circular economy development index.

In the United States, EPA has adopted Sustainable Materials Management as a regulatory framework. Much like the circular economy concept, SMM is a systematic approach to using and reusing materials more productively over their entire lifecycles. The focus of SMM revolves around four primary objectives: decrease the disposal rate, which includes source reduction, reuse, recycling, and prevention; reduce the environmental impacts of materials across their lifecycle; increase socioeconomic benefits; and increase the capacity of state and local governments, communities, and other stakeholders to adopt and implement SMM policies, practices, and incentives. The Resource Conservation and Recovery Act sets the legislative basis for SMM in the United States.

At the supranational level, the circular economy represents a key element of the United Nations Sustainable Development Goals. While voluntary and non-binding, Goal 12 refers to “responsible consumption and production,” and includes a target calling for a substantial reduction of waste generation by 2030 through prevention, reduction, recycling, and reuse. This is particularly relevant for companies that are aligning their business strategies with the UN goals.

While regulatory activity continues to evolve, in many cases business pressures — not regulation — have driven companies’ circular economy initiatives. In fact, in a survey by The Conference Board of over 50 company executives, cost savings ranked as the number-one reason for pursuing circular economy initiatives, with 44 percent of respondents pointing to this motive. By comparison, only 6 percent of respondents pointed to regulation as the primary driver of their companies’ circular economy initiatives. The focus on cost savings is not all that surprising, given the expected future price volatility of raw materials. For businesses that rely heavily on such resources, circular models provide a hedge against volatile prices.

Along with cost savings, a key driver of companies’ circular economy initiatives is evolving customer preferences. As mentioned previously, the types of products and services customers are looking for are shifting, and several companies are looking to circular models to remain relevant. Waste Management, for example, had to revisit its business model to retain customers. Realizing in the 2000s that landfill volumes were dropping, and strongly sensing that market pressures were pushing customers to embrace different waste strategies, Waste Management paused to try to comprehend the future impact of these trends on the business. Were they just short-term? What was the risk of inaction?

Company leadership recognized that failure to quickly adapt to changing customer needs could put the firm at risk of becoming irrelevant. This realization catalyzed a shift in mindset — participating in the circular economy (or “cradle to cradle” thinking, as it was referred to at the time) was crucial for Waste Management to remain relevant to customers and their evolving needs. Today, the traditional landfill business accounts for only a small portion of the company’s revenue, as more and more customers pursue zero-waste goals. “Green services,” which include recycling and environmental consulting, account for as much as half of Waste Management’s revenues.

The company’s early focus on circular economy initiatives centered on ways to reduce, reuse, or eliminate materials, particularly by looking at byproducts and waste materials from large customers. For example, one of Waste Management’s early initiatives involved working with U.S. auto companies to capture waste materials, such as scrap metal, and return them back to the production loop by finding new uses for the material — a traditional closed-loop initiative. Today, these initiatives have evolved to move Waste Management further up the value chain, collaborating with product designers and manufacturers to learn how their work affects the ability to capture products at their end of life.

The company works closely with designers to identify materials that either have a lower environmental impact or greater value, and can therefore be used in closed-loop initiatives. By going further up the value chain, Waste Management influences purchasing decisions and works side by side with designers to identify their specific problems associated with waste — and engineer them out. The company’s circular economy focus has widened to look not only at capturing and returning waste materials to the production loop, but also identifying ways to produce items that are ultimately more recoverable. This shift to tackling waste reduction at the design stage — rather than at end of life — also aligns with the current focus of the EU Action Plan.

The core premise of the circular economy — finding ways to decouple economic growth from the use of limited resources — has inspired a number of business initiatives with significant revenue-generation potential. For instance, five years ago Philips embarked on a transformation process that resulted in a decision to embed circular economy thinking into its core business. As for the thinking, what has helped Philips stay in business for 125 years — through several periods of economic disruption — has been the company’s ability to adapt to changing needs. For instance, Philips believes that if the company wants to be around for at least another 125 years, it will have to shift the way it and other companies use resources, given that current levels of consumption will not be sustainable.

In the case of Philips, the company’s main focus on circular economy initiatives hinges on the notion of switching from selling products to selling services. For example, “light as a service” is one of Philips’ primary circular economy initiatives — a shift away from selling light fixtures to providing lighting solutions. The company sees this as a response to a clear customer need. On the one hand, it is about financial considerations — customers find it much easier to swallow operational rather than capital expenditures. It also helps Philips stay on top of the latest customer needs and learn about customer usage patterns. And it allows the firm to extend replacement cycles to longer periods. Anyone not convinced that circular economy initiatives contribute to business value should take note: Circular economy initiatives such as light as a service already account for about eight percent of Philips’s annual revenue, and the company plans to double this amount by 2020.

Hewlett-Packard is another company that has benefited from innovative circular economy initiatives. The Internet of Things — essentially the interconnection of smart devices — has been a key enabler of the company’s circular economy initiatives. Take HP’s Instant Ink service, for example. By subscribing to this service, consumers’ internetconnected printers recognize when ink cartridges are low and HP then automatically ships new cartridges directly to the consumer. The new cartridges include return envelopes, enabling HP to close the loop by incorporating up to 80 percent of the plastics from returned cartridges into the manufacturing of new ones. The initiative’s direct-to-consumer model has also helped HP eliminate about 67 percent of materials used per printed page (primarily by eliminating the over-packaging retailers need for marketing and theft-prevention reasons). And since the costs of shipping cartridges to customers are now internalized, the product-as-a-service model incentivizes HP to maximize the amount of ink included in each cartridge, which also means that users need to replace Instant Ink cartridges less frequently.

For HP, much of the success of Instant Ink comes from the fact that the service addresses customer pain points. Notably, Instant Ink is marketed as an easier and more affordable option for consumers (customers can save up to 50 percent compared to purchasing ink from traditional outlets), and not as a circular economy or sustainability initiative. The service introduces sustainability benefits without pushing them as such to consumers.

Companies like HP understand that technology plays an important role as an enabler of the circular economy. Take 3-D printing as an example. 3-D printing has the potential to make it easier for companies to make production-ready parts on demand and locally, which can help extend the life of products and encourage design for repairability. This disruptive technology could potentially relocalize manufacturing.

Circular economy initiatives are not without their challenges. Companies that have launched successful pilots have done so only after overcoming multiple roadblocks and failed attempts. One of the biggest challenges in launching these initiatives comes from the need to align the interests and expectations of multiple partners along the value chain. Because circular economy initiatives often involve collaborating on the materials end and sourcing side, as well as with partners on the logistics of product take-back, disassembly, and reuse, ensuring open and transparent communication is crucial. These initiatives rarely succeed in silos.

The importance of close collaboration is unsurprising given the central role that innovation plays in circular economy initiatives. When The Conference Board surveyed global CEOs in 2016, two of the top three strategies they point to for meeting the Innovation and Digitization challenge relate to collaboration: engaging in strategic alliances with customers, suppliers, and other business partners and establishing a strong collaborative culture that encourages cooperation and coordination across functions and business units. The collaborative nature of circular economy initiatives means there is added importance in establishing partnerships based on transparency and trust. A lack of trust in partners is a major reason behind failed projects. When initiatives fail, either internally or with customers, it is often because of breakdowns in communication that result in stakeholders not being aligned about the shared risks and the shared value of the initiatives. While business partnerships matter, an overreliance on partners introduces a significant set of challenges.

Regulatory roadblocks can also present a significant challenge to circular economy initiatives. Specifically, inconsistencies in regulations across geographic regions and borders can add complexity and cost to these initiatives. Without uniform rules, something as simple as moving materials across frontiers can come at a high price tag and erode most of the economic value from business models that rely on product take-back systems. There is a clear need for addressing these regulatory issues at a policy level in order to prevent the unintended consequences of these rules from stifling circular economy initiatives. These challenges highlight the need for businesses to engage at the policy level.

The ultimate success of circular economy initiatives, much like the success of broader corporate sustainability initiatives, depends largely on having the support and buy-in from leaders who are willing to invest in them. This is not a simple ask: Obtaining buy-in from the brass ranks as the number one circular economy challenge companies point to, according to The Conference Board. But for companies that wish to remain relevant and competitive in the long term, this is an imperative. If there is one thing in common among companies that have successfully launched circular economy initiatives, it is that their CEOs and board members understand the concept, can connect it to business value, and can convey its value to investors, customers, and other stakeholders. TEF

COVER STORY ❧ The companies best prepared to reap the benefits of a waste-free society will be those that understand that the traditional linear model of resource extraction to disposal is ultimately unsustainable. Leadership businesses are powering the transition.