New federal bill seeks to shift cost of plastic pollution to companies

Washington — Democrats in Washington are stepping up pressure around packaging and single-use plastics, with two lawmakers unveiling a broad plan that they say seeks to shift waste and recycling costs onto companies and away from governments.

The plan from Sen. Tom Udall, D-N.M., and Rep. Alan Lowenthal, D-Calif., would seek to move the U.S. closer to something like the European Union's plastics strategy, and its introduction came as former Vice President Joe Biden urged a transition away from plastics at a campaign event Feb. 9 ahead of the New Hampshire primary.

Udall and Lowenthal are set to formally introduce their legislation Feb. 11 and held a press conference to outline their plan to require packaging producers of all materials — not just plastics — to fund waste and recycling programs. It includes other provisions that would apply to all material types, like a national 10-cent container deposit to boost bottle recycling.

But the legislation, the Break Free From Plastic Pollution Act of 2020, also includes some plastics-specific provisions like bans on common single-use plastic items like carryout bags, expanded polystyrene foam carryout containers, shipping packaging and plastic utensils.

It also has some provisions that are newer in plastics policy debates, calling for a three-year moratorium on new resin plant construction and banning exports of plastic waste to many developing countries.

At a Feb. 10 news conference, Lowenthal pointed to the large investments going into new plastic production, with an estimated tripling of plastic production in the next 30 years, as a long-term challenge. He said it's a big reason why he and Udall want to put more financial responsibility on the industry to deal with waste.

He also framed it as larger than bans or similar legislation aimed at reducing litter, saying that increasing plastics production will potentially account for an increase of 20 percent of fossil fuel consumption, and along with that increasing air, water and greenhouse gas emissions.

"If you want to have a plastics industry and you want to grow that industry, we have to change our model in terms of who is responsible and who is paying for it," Lowenthal said.

Udall said he believed there's a lot of interest from the public and in Congress for doing more around plastics issues. He estimated that taxpayers spend $10 billion a year supporting a recycling system that is not working well.

"There is tremendous bipartisan support for tackling plastic pollution in Congress right now," Udall said. "The problem is that the solutions have been mostly supplied by industry, who would rather see taxpayers and governments resolve the issue.

"We expect to see states and local governments start replicating this bill across the country," Udall said, suggesting that he does not necessarily see it as a partisan issue.

"I wouldn't worry too much about having a Democrat in the White House. We have seen when you produce something that the public loves and has huge public support, President [Donald] Trump has signed those kinds of bills," he said.

It's not clear how quickly the legislation would move through Congress, though, given that it's a sharp departure from what has historically been a limited federal role in waste and recycling policy.

Udall and Lowenthal both said the current legislation, the Save Our Seas Act 2.0, has wide support and passed the Senate. But that focuses on cleaning up waste already in the environment, rather than redesigning waste systems or products at the front end.

The Udall-Lowenthal legislation would be the most detailed yet from Washington and in some ways mirrors approaches taken by the European Union and its plastics strategy.

At its core, the bill would require companies that make packaging from all types of materials to be part of what it calls "Producer Responsibility Organizations" — more commonly called extended producer responsibility (EPR) — that would design and pay for waste collection and recycling programs. They would have to develop programs that meet approval of the Environmental Protection Agency.

There's growing interest in such EPR laws around packaging, according to Scott Cassell, the head of the Product Stewardship Institute, who participated in the press conference in support of the bill.

"We're seeing EPR bills in at least eight states cropping up because there's political will and there's an opportunity right now because of the trade restrictions on recyclables going abroad," Cassell said. "The plastics pollution, the increased costs, has created an opportunity."

He noted that the flexible packaging industry has been working with his organization for the last five months on developing model producer responsibility programs for state legislation.

"They see the writing on the wall that's out there," he said. "It's a matter of time before other producers come to the table if the political will is expressed in the manner it's being expressed here."

He said EPR programs send a financial signal to companies to put more recyclable materials in the market.

In spite of its title, the bill is broader than plastics, covering all materials in the EPR language and all material types with its container deposit program. But in other areas, it singles out some plastic products: It would ban plastic retail shopping bags but would allow paper bags, with a 10-cent tax.

The bill has other potentially far-reaching provisions for the plastics industry.

For example, it would effectively ban export of plastic waste to developing countries that it says can't properly recycle it by prohibiting scrap material shipments to countries outside the 36-member Organization of Economic Cooperation and Development.

Lowenthal called it a human rights issue to limit exports of scrap to countries that generally have not had resources or laws to properly recycle it.

The legislation could also put a serious crimp in the industry's shale gas-led construction boom, putting a three-year moratorium on building new factories that make plastics or use chemical-recycling technologies to break polymers back down into feedstocks.

Udall said that's needed to give the EPA a chance to update rules around air and water emissions from those facilities, and it specifically said new regulations are needed around discharge of resin pellets into waterways.

"They have these little pellets called nurdles that sometimes get into the water and then get to be microscopic size and get into our bodies and the bodies of wildlife, [and] what we want is the EPA during that pause to study environmental impacts and update important regulations," Udall said. "This is an area that has not been regulated. It's kind of the Wild West in some ways."

As well, the legislation would specifically allow states to have their own tougher laws around packaging, either setting higher fees or enacting other product bans.

It would also set specific recycled content requirements for plastic beverage containers, starting at 25 percent by 2025 and rising to 80 percent by 2040. For beverage containers from other materials, it would ask federal agencies to do a study and make recommendations.

The lawmakers said it was the first piece of federal legislation to try to set minimum recycled content standards on packaging.