CE Makers to Tell Their Side of NYC E-Waste Fight in Thursday Briefing

CEA and ITI have denied the allegations and are expected on their conference call to explain why their complaints are directed only at New York City, said an advisory to reporters on Monday. In it, the groups said high-tech companies are “responsible stewards of the environment” and that the industry “fully supports reasonable initiatives to promote the safe and efficient recycling of electronic devices.” But New York City’s law, and Sanitation Department rules to carry it out, “will significantly harm the environment, consumers and the economy by placing the entire burden of direct collection and recycling on electronics manufacturers whose products are distributed, sold or transported into New York City,” the advisory said.

In their briefing, CEA and ITI officials “will present industry’s perspective on the case,” the advisory said. They'll discuss what’s “unique about the NYC law and its regulation compared to other state programs,” it said. They'll also describe the “negative impact of the law and regulations on consumers in NYC and across the country,” and the environmental fallout of the direct collection requirement, it said. CEA and ITI have alleged that the requirement will require hundreds of truck rolls to collect e-waste on demand from city residents, spewing tons of CO2 into the environment. The NRDC has called CE makers’ interpretation of the direct-collection rule “absurd.”

The judge in the case, William Pauley, set opening argument for Feb. 10 at 9:45 a.m. at the U.S. District Court in Manhattan. The NRDC has drawn Pauley as the judge in two previous cases it has filed during the 12 years he has been on the bench in New York’s Southern District, according to court records. The NRDC lost one and there was no decision in the other. In June 2007, the NRDC filed a complaint seeking disclosure under the Freedom of Information Act of memos between offices of the U.S. State Department that the green group alleged would expose illegal logging in Peru. But Pauley agreed with the State Department that the memos were protected from disclosure under FOIA exemptions. In the other case, the NRDC and the Sierra Club sued the U.S. Army Corps of Engineers in January 2009 for issuing a permit allowing energy supplier Ohio River Clean Fuels to build a $5.5 billion “environmentally destructive” coal-to-liquid- fuel plant. The complaint asked Pauley to revoke the permit on grounds that the plant would spew 26 million tons of CO2 into the environment yearly. But all the parties agreed to have the case transferred to the U.S. District Court in Cleveland.

A search of court records turned up no significant cases in which Pauley figured prominently in a decision involving a major CE or IT manufacturer. Many cases involving New York City have come before the judge over the years. Anonymous postings at a lawyers’ website, the Robing Room, say Pauley shows a pro-government bent in criminal cases but is fair- minded in civil cases, as long as the attorneys who come before him are well-prepared.

In a famous 2004 case, Pauley handed New York City a surprising defeat by rejecting its motion to require organizers of Critical Mass bike rallies to get parade permits or face arrest. He said that “after allowing Critical Mass rides in Manhattan for ten years without permits and in a manner that the City contends violates the Vehicle and Traffic Law, the Police Department has acquiesced to the very conduct it now seeks to prohibit.” In finding against the city on the permits question, Pauley said he recognized “that judicial interpretation of novel local regulations should be made in the first instance by a state court with primary jurisdiction over such matters.”

Both sides in the e-waste court fight have cited to their advantage Pauley’s 2003 decision in Kraft Foods North America v. Rockland County Department of Weights and Measures. It’s one of his few decisions involving the Dormant Commerce Clause, on which CE makers are basing their case that New York City’s e-waste law is unconstitutional because it “unquestionably burdens” interstate commerce. In Kraft, CE makers argued in their motion for a preliminary injunction, Pauley said Rockland County’s net weight labeling rule violated the Dormant Commerce Clause because the regulation “unduly burdened interstate commerce in relation to the local putative benefit.”

But New York City also sought to use Kraft to defeat the e-waste injunction request. “It should be noted that nothing in Plaintiffs’ voluminous submissions points to any specific in-city manufacturer that would be put at a competitive advantage by the E-Waste Program,” the city said, citing the Kraft decision. “By contrast, courts have generally identified the beneficiaries when they have struck down local laws as providing a competitive advantage for local industry.”