States Challenge CEA's NYC Electronics `Take-Back' Lawsuit

By Greg Tarr -- TWICE, 11/5/2009

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NEW YORK - State and local government officials from 18 states are calling on the Consumer Electronics Association (CEA) and Information Technology Industry Council (ITIC) today to withdraw a lawsuit against a New York City e-waste recycling law that makes producers responsible for taking back waste products for recycling.

A letter to the CEA and the ITIC representatives from 18 state and local governments expressed continued support for localized laws that give CE manufacturers responsibility for financing effective take-back services for all the products they are selling in those states.

The lawsuit, which was filed in U.S. District Court on July 24, argues that the New York City e-waste recycling law passed in April 2008 is unconstitutional.

The New York law requires the electronics companies to collect and recycle old electronic products and 19 states have passed similar "producer take-back" laws.

Also, earlier this week, local governments from New York state, Oregon and California and an independent government association submitted an amicus brief to the court — providing legal arguments challenging the industry claims in the lawsuit, and in support of New York City's right to enact its producer take-back law.

Two states, Maine and Washington, provided affidavits that were submitted as part of the New York City's legal filings. The Natural Resources Defense Council (NRDC) has also intervened in the case, in support of the city's law, and is now a party to the case.

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

Commenting on the action, Parker Brugge, CEA environmental affairs and industry sustainability VP, said: "We do not oppose producer responsibility. We exercise producer responsibility in other states where it is the law, and also voluntarily in states where it is not the law. Our industry recycles hundreds of millions of pounds of e-waste per year.

"After years of negotiating with the city for a more reasonable outcome, CEA, ITI and their thousands of members were left with no other choice in order to protect businesses, workers and ultimately, consumers, from these draconian regulations, which would require private door-to-door collection of CE products for more than 9 million city residents," Brugge said.

"Our concerns with the NYC law are unique to that city. Specifically, New York City — in contrast to other states and countries — ignores the accepted principle that electronics recycling is a shared responsibility among manufacturers, distributors, retailers, consumers and governments. NYC's private door-to-door pickup obligation is unprecedented, disastrously expensive, and will harm the environment by putting trucks in the streets.

"New York City's penalties for failing to meet performance targets are too high and are especially unreasonable because the only practical way to meet the targets will be through door-to-door collection. Methods used in other states (e.g., recycling drives, permanent drop-off centers) will not work in New York because consumers will know they can pick up a phone for free pick-up.

"NYC's obligation to collect orphan waste door-to-door, free of charge, is unprecedented, unfair, and illegal. Orphan waste is not our sole responsibility. It is a shared responsibility. Companies will pick up orphan waste door-to-door if we can charge a reasonable fee for doing so," Brugge concluded.

According to state and local representatives, states began passing recycling laws because there was no federal take-back law and little likelihood of a strong federal law being adopted. They also argued that voluntary industry programs were not effective.

The 19 states which have passed producer responsibility laws for electronics are: Connecticut, Hawaii, Illinois, Indiana, Maine, Maryland, Michigan, Minnesota, Missouri, New Jersey, North Carolina, Oklahoma, Oregon, Rhode Island, Texas, Virginia, Washington, West Virginia and Wisconsin.