In the United States, no federal law exists mandating the takeback or recycling of e-waste, or used electronics that Americans no longer want.
But that hasn’t stopped 25 states from passing legislation to regulate what happens to electronics once consumers have decided to get rid of them as they purchase newer models.
Those states have recognized the problem that e-waste creates. Worldwide, there are more smartphones than there are people, and in 2016 consumers discarded 49 million tons of these devices.
A study by the United Nations University concluded that by 2021, that figure would rise to 57 million tons, as technological advances keep churning out newer and more sophisticated versions of every electronic device imaginable, making the older ones obsolete.
The states have approached the issue in different ways. New York and Colorado have banned e-waste from going into landfills, since the chemicals inside them pose significant environmental hazards to the nearby soil and water.
Other states require companies manufacturing these devices to set up programs to retake used devices so they can be sent to recycling firms. That way, the parts within them can be removed and resold to make new products.
One of those states is Connecticut, which recently had its e-waste law reaffirmed by a federal court. The Connecticut law had been challenged by an electronics manufacturer who argued the state’s e-waste recycling law violated federal interstate commerce laws.
The federal court’s decision to toss out that lawsuit suggests states are on solid legal ground as they mandate e-waste recycling programs.
The court’s favorable ruling has the potential, in the long run, to encourage more states to enact e-waste recycling laws, which would be great news considering that recycling rates for used electronics remain stubbornly low.
What Did the Federal Court rule in the Connecticut case?
In 2007, Connecticut lawmakers voted to require electronics manufacturers doing business in the state to register with the state’s Department of Energy & Environmental Protection. They also must pay a fee to help cover the cost of recycling the electronic devices they produce.
The law also requires electronics producers to help facilitate the collection, transportation and recycling of certain electronics devices, to help keep them out of landfills.
The law was challenged by one electronics manufacturer, VIZIO Inc., which develops consumer electronics. VIZIO is headquartered in Irvine, California, not Connecticut, and is best known as a producer of flat-screen televisions.
VIZIO challenged how Connecticut calculates its recycling fee, arguing that it unlawfully regulates interstate commerce by directly regulating VIZIO’s out-of-state sales and by controlling VIZIO’s conduct beyond the state’s boundaries.
The case went to a federal judge, who dismissed it.
Even though VIZIO is based in California, as a manufacturer of televisions sold nationwide, VIZIO was required to participate in Connecticut’s recycling program and register with the state.
VIZIO’s lawsuit was directed at the state’s recycling fee, and how it gets calculated. The law requires the state Department of Energy & Environmental Protection to establish yearly registration fees, and additional fees to help cover the cost of Connecticut’s recycling program.
The fees are determined by the manufacturer’s market share, one of the primary indicators that companies use to measure how well they’re doing compared to their competitors.
The state determined the fees each manufacturer pays based on several factors, including how many units they sold in the previous year, using national market share data.
VIZIO challenged that fee scheme in 2015, filing a complaint in federal district court claiming that a national market share approach to determining the fees unlawfully regulates interstate commerce.
Specifically, the manufacturer argued that the law imposes in-state fees to out-of-state transactions, regulating VIZIO’s out-of-state sales and controlling VIZIO’s conduct outside the state’s boundaries.
VIZIO also argued that Connecticut’s fees increase their cost of doing business, both in the Constitution State and nationwide, because the state’s regulatory costs create a burden for companies like VIZIO that manufacture products sold across the country.
Finally, they argued that by factoring in the company’s national rather than just in-state sales, Connecticut was doubling the charges that manufacturers pay for sales made outside the state.
In effect, VIZIO was arguing that Connecticut was controlling prices beyond their borders.
But the federal court disagreed.
U.S. District Judge Victor A. Bolden rejected VIZIO’s complaint and concluded that the company had failed to offer a viable legal claim under the Commerce Clause of the U.S. Constitution. He dismissed VIZIO’s lawsuit, which the company appealed to a three-judge panel of the U.S. Court of Appeals for the Second Circuit. But that panel upheld the district court decision.
“Neither Connecticut’s consideration of out-of-state sales as a basis for its e-waste fees nor any resultant allegedly ‘duplicative’ charges in multiple states constitute a regulatory inconsistency,” the appeals court noted in its ruling. “Rather, it is merely an inconvenience for VIZIO to pay a seemingly larger e-waste bill.”
The court also cited the benefits of Connecticut’s recycling program, and indicated they outweigh any issues faced by VIZIO.
“The benefits provided by Connecticut’s E-Waste Law are legion,” the panel noted. “Primarily, the law funds the state’s recycling efforts, a clear benefit to the public at large. Secondarily, the market share approach itself provides additional benefits in that it, among other things: apportions costs amongst state market participants, reduces the administrative strain other approaches may carry in identifying producers, and guarantees that any ‘orphan’ products—those for which an original manufacturer is unidentifiable—will be recycled.”
What Are the Implications of the Ruling?
The court’s decision is likely to be embraced by companies that handle e-waste recycling, and the municipal and environmental groups that advocate for higher e-waste recycling rates. Because without recycling, used electronics are likely to end up — in bulk — in one place: community landfills. Unfortunately, many still do each year.
As the U.S. Environmental Protection Agency noted, nearly 2.4 million tons of electronics got discarded as regular household trash in 2009, and sadly that was up 120 percent from 1999.
Of that amount, only 25 percent got collected for recycling, with the rest going to landfills or incinerators.
The materials in used electronics — metals, plastics and glass – can be recovered through recycling and used to make new products. These devices also contain hazardous toxins, including lead, nickel and mercury, which makes it vitally important that they be safely dealt with.
That’s why 25 states and the District of Columbia have established statewide e-waste recycling programs, typically with two models for disposing of e-waste. In 24 states, the manufacturer of these devices takes responsibility by paying to collect and recycle the products covered under the state law. The actual products that are covered varies quite a bit from state to state.
California has a different model, known as the advanced recycling fee model. It mandates that consumers pay retailers a $6-$10 fee at the time of purchase, which gets deposited into a statewide recycling fund.
Colorado also requires state agencies to recycle electronic devices.
At the federal level, there are no federal rules governing e-waste recycling. Until there is, e-waste recycling will remain a state issue.
And if manufacturers of electronics devices are not able to successfully sue to block or weaken those laws and regulations governing e-waste disposal, that could encourage more states to adopt recycling programs.
And it was also encouraging in the Connecticut case that the court recognized and took very seriously the issue of e-waste recycling.
Despite the state’s favorable ruling, there’s still a need to promote more state recycling programs, and to adopt federal regulations as well. Until we do, far too many used electronics are going to end up where they don’t belong, in landfills.
Another way to increase recycling rates is for the general public and businesses to take the initiative and collect any used electronics they have and bring them to an established recycling firm like Great Lakes Electronics Corporation, where electronic recycling is their specialty.
Great Lakes Electronics Corporation has years of experience performing environmentally friendly recycling of electronic products, which are disassembled into component parts, so that the ones that still have value can be sold for reuse. Other parts are used for metals recovery, and everything is recycled.