A group of restaurants, recyclers and manufacturers sued Sept. 12 to block New York City's second attempt to ban expanded polystyrene food service packaging.
New York City is set to ban EPS foam packaging starting in November, arguing that while the material may be technically recyclable, it's not cost effective for the city to do so.
But the coalition of businesses argued that the city is flouting a 2015 New York state court ruling that overturned the city's previous ban, and said the material can be recycled effectively.
"The de Blasio administration should comply with the court's directive, drop its latest misguided attempt to ban soft foam and implement the comprehensive recycling program proposed and financially supported by industry participants," said Randy Mastro, lead attorney for the business group, in a statement.
"Indeed, a comprehensive program recycling all polystyrene will be more environmentally effective and economically feasible than a limited soft foam ban alone, saving the city millions of dollars in landfill costs, and protecting the many smaller restaurant businesses that depend upon cost-effective soft foam food-service items to survive," he said.
The group filed suit in State Supreme Court, which is New York's trial-level court. The highest court in New York state is called the Court of Appeals.
The business group argued that EPS alternatives would cost the city's businesses and consumers $51 million a year, and said they can be worse for the environment in emitting green gases and creating solid waste.
A spokeswoman for the city's Law Department said only that it would vigorously defend the “thorough, exhaustive, and legally sound” May 12 report from the Department of Sanitation enacting the ban, which said that food service EPS "cannot be recycled in a manner that is economically feasible or environmentally effective for New York City."
The city argued that food service foam collected for recycling can be "worthless" when it arrives at recycling facilities because it's covered in food residue and breaks into small bits. It also said it can be hard to find buyers for the material as well.
"This has been the experience of the large municipalities contacted by DSNY... and several other small and large municipalities that also attempted to recycle food service foam," the city said. "There is no basis to expect that New York City's experience will be any different."
But the businesses argued that the city cherry-picked information and said the city was making "false claims that polystyrene foam is not recyclable."
They argued that the ban would cost the city $11.2 million annually in added procurement costs for plastic foam substitutes, and said a recycling program proposed by Dart Container Corp. would save millions of dollars in avoided landfill costs and generate millions in revenue.
"Once again, New York City is ignoring the facts that prove polystyrene foam can be recycled — a denial that is costing the city a significant economic windfall through a combination of recycling revenue and landfill avoidance," said Alan Shaw, president of EPS recycler Plastics Recycling Inc. of Indianapolis, in a statement.