CEA, ITI Say They Have ‘No Plans’ for E-Waste Lawsuits in Other States
CEA and the ITI Council have “no plans” to use any victory in their New York City e-waste lawsuit to challenge the constitutionality of producer responsibility laws on the books or soon to be enacted in other states, the head environmental officials from both those trade groups told reporters during a telephone briefing Thursday. Both officials said they deem future lawsuits unlikely, but neither would entirely rule them out.
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By suing to stop New York City from implementing its e- waste program, neither CEA nor ITI “is challenging the concept of producer responsibility as it is currently being implemented in states across the country,” said Rick Goss, ITI vice president, environment and sustainability. “There’s a reason why we have never filed litigation” in any other of the 19 states that have e-waste laws on the books, he said. “It’s because the New York City program is so unprecedented here.”
Makers haven’t challenged any other states’ laws or rules, “because at the end of the day, we see that we have a role to play as manufacturers and being part of the solution here,” Goss said. “We want to cooperate on electronics recycling programs. We want to see these products responsibly recycled, and play our proper role in the process. We do think there are legal and constitutional weaknesses in other states, but that’s not what’s at issue here. We're suing New York City over the New York City program. Can we categorically state that we won’t pursue litigation in any other state? My response to that is we never thought we'd have to sue New York City. This is just a stunning set of circumstances here, and a stunning legal and constitutional overreach that’s prompted us to do this. If you're asking are we going to turn around, presuming we have a victory in New York City, to look to sue other states? The short answer is we have no plans to do that. But if another state were to come up and attempt to apply some of these same elements, we would reserve our right to do that.”
Responding to our question whether manufacturers would use a victory in the New York City case to seek to have laws that already are on the books in other states reviewed, Parker Brugge, CEA vice president of environmental affairs and industry sustainability, again said they had no plans to do so. “Every other state program is more acceptable than New York City’s,” Brugge said. “Every one. Are there elements of the other programs that are objectionable? Sure, but we never challenged any other state program and we don’t have any plans to. This lawsuit is simply about New York City, the provisions in New York City that are so unreasonably burdensome, that are found nowhere else. That’s what this lawsuit is about. It’s not about challenging the underlying tenets of producer responsibility.” CE and IT makers have “embraced producer responsibility,” Brugge said. “We have voluntary programs throughout this country, throughout the world, and we understand that we've got a role to play with producer responsibility.”
The city’s unique direct collection requirement is not the only rule manufacturers find overly burdensome about the program, Goss said. They also disdain the novel “regressive” noncompliance fines written into the city law that could drive smaller companies out of business for a single minor infraction, he said.
Another city-specific rule, that on orphan waste, is another uniquely burdensome regulation, Goss said. In mandating that manufacturers pick up orphan e-waste from a resident’s home, “what the city law requires here is yet another very prescriptive element that we see nowhere else” in the country, he said. The city law defines an orphan TV as one that’s made by any brand or manufacturers that’s no longer in business, he said. The law says a resident who owns such a product “can literally call up any existing company that makes the same type of device and compel them to show up and provide free collection and recycling,” he said.
For example, Goss said, Syntax-Brillian sold “hundreds of millions” of Olevia-brand LCD TVs in North America before liquidating a year and a half ago. Olevia was once the seventh-largest selling LCD TV brand, he said. But “anybody in New York City who has one of those now-orphan brands can pick any television manufacturer and compel them to show up in person to pick up that product and recycle it for free. This has nothing to do with producer responsibility. The concept of producer responsibility is predicated on having a manufacturer recycle its own brand of product to learn how to better design its next product. It has nothing to do with waste collection. It has nothing to do with taking back and collecting products you never made. We support producer responsibility, but this is not producer responsibility.”