Plastic Watch: Congress Considers Bill to Impose Extended Producer Responsibility, AKA ‘You Break It, You Buy It’

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

Senator Tom Udall and Representative Alan Lowenthal introduced on 11 February the Break Free from Plastic Pollution Act, legislation that imposes responsibility for disposing of plastic waste onto producers, and which encouragingly, has attracted strong opposition from the plastic industry.

First up, I want to flag a recent grist article, which highlights the looming threat: Big Oil’s plan to ramp up American plastic production, Big Oil’s Plan B is already in the pipeline: More plastic. We’re engaged in a giant game of whack-a-mole, where the industry has huge incentives to find new uses for plastic, to replace any types that get banned or curtailed. Under the current system, the producer players book the profit for plastic products and the government – and society more generally – either pays to clean up, or drowns under, the increased waste.

The US plastic recycling system is notoriously inefficient, more a massive exercise in virtue signalling than an effective waste management system. Only 8% of plastic waste is currently recycled, with the rest incinerated landfilled or shipped overseas to places even less able to process it, according to EcoWatch, Groundbreaking Legislation Would Help U.S. ‘Break Free From Plastic’. The world recycling system has broken down, ever since China elected not to accept any more plastic imports beginning in 2018. Since then, the recycling systems of many developing countries have been overwhelmed by plastic waste imports, and others have followed China’s lead, including recently, Malaysia. In January, China banned many types of single use plastic, to be implemented over five years (see Plastics Watch: China to Ban Single-Use Plastics, Malaysia Rejects Waste Shipments).

Now, even if recycling rates were a perfect 100%, we should not use that fact as carte blanche for producing plastic. First, most plastic is currently made from fossil fuels. We simply cannot continue to use fossil fuels in this way. A 2019 report from the Center for International Environmental Law found the emissions in 2019 from the production and incineration of plastic to be  more than 850 million metric tons of greenhouse gases – equal to the emissions from 189 five-hundred- megawatt coal power plants. By 2050, this figure is expected to more than triple, to the equivalent of 615 such plants. Second, any system that deals with plastic by recycling, especially if shipments to other countries are involved, also unnecessarily consumes fossil fuels.

What the Legislation Would Do

What’s most innovative about the legislation is that it incorporates the concept of extended producer responsibility (EPR) for plastic bottles, packaging and assorted items, along with creating a national container deposit system, according to Waste Dive, Break Free From Plastic Pollution Act debuts in Congress, instigating packaging EPR debate.

As EcoWatch reports:

Lowenthal said he and Udall had been working on crafting the legislation for about a year.

“First and foremost, the Break Free from Plastic Pollution Act removes the burden of waste collection and recycling from the cities, from states, and, most importantly, from taxpayers, and puts it where it belongs: on the producers and the companies putting out these unsustainable products into the marketplace,” Lowenthal said in Monday’s press call.

I think of EPR as a version of the old idea: “You Break it, you Bought It,” in that it imposes responsibility for waste management on those who produce the offending material. If they know they have to bear the costs of clean-up, they can elect not to produce the offending material.

Many plastic waste measures are pending in Congress, but as Waste Dive notes:

“Ours is the only bill in Congress that deals with the source of the problem,” Udall asserted.

Now, I should say that I would define the scope of the problem much more broadly, to include the whole plethora of unnecessary plastic. That being said, this legislation seems to me to be more than he same old same  old invocation of the recycling mantra, with a twist of virtue signalling bans.

Seems also that US policymakers are looking north for examples of places that have rolloed out EPR systems, according to Waste Dive:

Two archetypal EPR models currently exist in Canada, associated with two different provinces, Québec and British Columbia. The Québec model relies more on pre-existing systems and infrastructure, with producers reimbursing local municipalities for costs incurred. The British Columbia model implements a system where producers are largely in charge of the full process, from production to recycling.

The bill has several ground breaking components, according to EcoWatch:

  1. It requires plastic producers to take responsibility for their waste. The bill would shift the burden of waste collection and management from local governments and taxpayers to the manufacturers of items like packaging, containers, food service products and paper, who would be charged with designing and funding recycling systems.

  2. It establishes a nation-wide beverage container refund system. Anyone buying a beverage container of any type would be charged an extra 10 cents that would be refunded when they returned the empty item.

  3. It phases out the most polluting single-use plastics. Starting in Jan. 2022, highly polluting items like plastic bags, polystyrene containers and plastic stirrers and cutlery would be phased out. Straws would only be available by request. The bill would also introduce a nationwide plastic bag fee.

  4. It mandates minimum recycled content. The bill would require products to be made with increasing percentages of recycled material. For example, plastic bottles would need to be made of 25 percent recycled material by 2025 and 80 percent by 2040.

  5. It considers environmental justice. The bill would prohibit the U.S. from shipping waste to countries that cannot manage it. It would only be able to export waste to countries in the Organization for Economic Co-operation and Development, and only with their consent. Further, it puts a pause of up to three years on the granting of permits for facilities that create plastic so that the Environmental Protection Agency can update its safe air and water standards for these facilities.

Waste Dive recognizes that products that would be banned under the legislation extend beyond the familiar single-use plastic bags and straws:

Certain types of plastics increasingly under fire due to their low recyclability rates and potential for pollution would also be banned beginning January 2022. This would include plastic carryout bags; expanded polystyrene “food service products” and shipping materials; plastic stirrers and utensils; single-use bottles for shampoo and other hotel toiletries; and “non-compostable” produce stickers. Plastic straws would also be limited, but still available upon request. Relevant federal agencies would moreover be tasked with proposing measures to reduce the environmental impacts of plastic tobacco filters, electronic cigarette parts and derelict fishing gear.

Now, I sound a cautionary note. This legislation can only succeed if it imposes sufficient   penalties for plastic industry violations, and also zealously embraces enforcement, including allocating sufficient resources to achieve that goal. As Bill Black has said in another context, – and I paraphrase – the reason why the financial services industry gets away with what it does is not because the  statutory framework is per se defective, but due to the lack of willingness – and sufficient resources – to prosecute offenders. Lack of enforcement has been a prime reason the rule of law has broken down in the United States. This is not just a Trump phenomenon, but a trend since I first started paying close attention during the latter part of the Carter administration and the Reagan administration. It’s certainly accelerated since the turn of the millennium.

Merely shifting responsibility to an industry determined to shirk it ensures that no one will be responsible for cleaning up plastic garbage – which will continue to smother us.

Congress isn’t alone in mulling an EPR solution. Waste Dive notes:

This national discussion could factor into similar EPR proposals already advancing at the state level, including an upcoming bill in Maine that favors a Québec approach and has some potential buy-in from the waste industry. Vermont, California, Massachusetts, Oregon, Washington, Indiana, New York and Connecticut are also considering – or are set to consider – their own EPR policies in the near future.

Compare this to the industry-sponsored Save Our Seas Act 2.0, which the Senate passed in January, Plastic Watch: Senate Passes Save Our Seas Act 2.0. That bill eschew any bans and places touching faith in the recycling fairy, and imposes responsibility for recycling measures on government.

What Is to Be Done

The Udall/Lowenthal legislation is a first step towards a better plastic management system, in that an EPR approach places an onus on plastics producers, rather than on government, for cleaning up plastic waste. I think we must go much further – and soon – and ban more types of plastic packaging outright. It’s also crucial that we impose sufficient penalties – and more importantly, embrace a willingness to enforce the law zealously and also dedicate the resources necessary to do so. But I despair we can do this, given Big Oil’s plans to ramp up plastic production.

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  1. Larry Y

    Meanwhile, need to keep pushing at the local and state level. I have friends who were active in banning plastic bags in NYC (Cuomo undermined it). Parsippany, NJ just had a new ban come into effect this February.

  2. chuck roast

    The subhead for this post:
    Expect to see a Municipal Incinerator in Your Neighborhood Soon

    Because this is the unspoken and unspeakable outcome of “the shared compensation model.”

    The plastics stakeholders will be more than happy to throw chump-change at cash strapped local municipalities. Inevitably a nearby township with weak local governance and a struggling citizenry will fold to the “win-win” nonsense of extending life of the landfill; reducing local expenditures; increasing the tax base; providing high paid jobs; getting electricity at a reduced rate; electricity production without oil, coal or natural gas. A virtual virtue signaling bonanza. And it won’t be just plastics the trash-to-energy plant will be looking for. They are voracious magnets for BTU’s. Newspaper, cardboard, construction wood waste – all are welcome at this monster.

    It gets better. In return for this generous industrial largesse the electrical plant owner will demand that the locals guarantee the deliver of a specific amount of BTU. If electricity production is diminished because of lower input the locals will pay. And of course the risk-free industrial model will require further guarantees from the locals in the form of low-interest municipal bonds.

    Oh, did I forget to mention the furans, dioxin and other emission by-products of “shared compensation?” The Québec model. Man, I have lived way too long! Lambert, gather your landfill buds. You will have business to attend to soon, and I have a motto for you…


  3. Susan the other

    I wish congress would do a similar break-free act with the chemicals industry. Big oil has always been a product looking for a market. So enforcement is complicated now that the entire world economy is so infused with petroleum poisons. We might want to put restrictions on advertising and promotion, wholesale and retail, of any toxic and non-recyclable materials. And as always, in order to transition out of the mess we have created we need new methods – we need alternatives. Buying bulk using the same crusty old jug is OK. But it falls to the consumer who is fickle at best. When I start to think through it I realize all over again that it’s our entire way of life that is skewed. I’d like to imagine the 1800s transposed to today – they’d have different habits of shopping and consumption – but they’d be just as filthy, maybe worse. How do we change that mindset?

  4. Samuel Conner

    Legislation like this might encourage industry (hydrocarbon producers as well as users) investment in research into depolymerization as a feasible “circular economy” approach to management of plastics waste.

    Ship the waste back to the plastics producers, who have to convert it back into feedstocks. T’would reduce the demand for fresh hydrocarbons out of the ground, too.

  5. Rod

    My upstate SC County has seen a 60% increase in population in the past 7 yrs.

    While Municipalities having collection regimes are struggling with the volume increases, it is the Green Box Collection sites(tax payer supported ‘free’ sorted waste disposal facilities, staffed and open 7-7 five days a week, for citizens not served by paid trash collectors) that are being overwhelmed.

    Staff complain and the County Waste Manager is struggling to find resale outlets for recyclables–while paying more county money to just truck the excess further down the road.
    Just yesterday, a staffer commented “I just can’t believe we pay to buy this sh*t and pay to get rid of it”

    #1 is just plain right and the Recycle part should only be allowed via Locally granted waiver from the local Waste Manager.

    #2 Big incentive for local vigilance–today was light for me picking up my 400′ of road frontage, would have only paid .40c, however post weekend Monday would have paid 1.10$. But paddling my local reach of river( 7 miles) would be really profitable…

    #3 Can’t we just have Legislation like India thinks is good?

    #4 Just the tacit acknowledgement that OIL is a precious and valuable commodity that needs to be treated as such for more than incineration or re-burial would be good to have as a premise.


    Further, it puts a pause of up to three years on the granting of permits for facilities that create plastic so that the Environmental Protection Agency can update its safe air and water standards for these facilities.

    . boy doesn’t this just sound sane in 2020?

  6. Bill

    Here’s a window to the past for “younger” readers:

    In the 1960s, small soda bottle had a 3 cent deposit on them. Larger, quart sizes were a nickel.
    Grocers in small stores and supermarkets collected and refunded the cash. The same truck that dropped off carbonated beverages in wooden crates took back the empties to be washed and refilled. A big or two small soda bottles bought a candy bar that could fill one up for at least an hour to two.The trashmen collected empty wine bottle for refilling. Dairies stopped using milk bottles ans switched to wax lined paper cartons around 1962. Other than accidental breakage, popular drink bottles were recycled.
    Beer bottles AFAIK, had no deposit. Steel cans were recyclable, and in fact, until the mid 1960s, in Los Angeles, it was mandatory for households to separate metal cans from their garbage, a holdover from WWII war material scarcity.
    The only plastic items encountered until the mid 1960s were telephones, toys and a few packages. The first plastic food bag I saw was for macaroni in the mid 1960s. Wood based cellophane was used a lot. It deteriorates in the sun.

    1. chuck roast

      Here’s another one for the youngsters…
      By the early 70’s the local breweries all over America had been bought-up, closed or consolidated. There was a vast wasteland of beer. Schlitz, Miller, Bud…a wall of tasteless crap. Bass Ale was particularly prized when you could find it, and then there was Ballentine Ale. Bally was a tasty, hoppy IPA that retained a kick. It also came in returnable cases of quarts. As far as I know Bally was the last of the returnables.

  7. David West

    Now the only problem will be the same problem the EPA has dealt with since day one of its inception: litigation.
    Goodluck going after the corporations in the courts for paying cleanup costs, etc. It wont happen. Court system was the first one to be compromised in the US, followed by the tax code.

  8. Math is Your Friend

    This really looks like another poorly thought out idea, like so many, that seem to assume that ‘we can pass a law and make everything to the way we want’. A lot of bad policies and bad laws seem to come about this way, but policy makers and law makers seem to be rather slow learners.

    Such attempts do not always produce unplanned and unexpected consequences, but that is most often the way to bet.

    Prohibition was not intended to produce the perfect conditions for the growth and spread of organized crime, while providing a certain level of public acceptance.

    The war on drugs was not intended to finance ever more powerful and violent drug cartels.

    The invasion of Afghanistan was not planned to change that country from an insignificant source of drugs to the largest heroin source in the world.

    Safety regulations and technical safeguards were not intended to trigger the Chernobyl reactor fire.

    A careless or willful blindness to accompanying effects and consequences is a hallmark of quick fix policies and laws, and that’s what this bill smells like to me.

  9. Math is Your Friend

    Refillable bottles did not go away by accident, or as a result of an evil plan.

    They went away because they were a major problem, in a number of different ways.

    Consider 24 bottles or cans of pop.

    The bottles are much heavier, and take up more space. They require a much stronger outer package to handle the bottles, and protect them. They were generally delivered by trucks associated with each soft drink manufacturer to many scattered points of sale. At the point of sale they had to be removed from the cases and placed in a dispenser or on shelves. The cases then had to be stored.

    The bottles were eventually purchased and went out with their various buyers. At this point, the safety aspect comes in. Glass bottles break. There were a myriad pieces of broken glass scattered about the outdoors. Smart people always wore shoes almost all the time. Even then, glass could and did end up in beaches and on lake beds, both above and below the water. Nasty. My first scar came from an encounter with a broken bottle, before my age got into the double digits.

    All the above is the easy part. Then the bottle gets returned somewhere…

    The store must inspect and sort the bottles, pay the returner, and then sort them into boxes based on size and originating company. Eventually the three or four or five trucks collecting for various firms would come around, and wooden boxes of bottles would be sorted through and the appropriate ones placed on the current truck.

    Those trucks would return the bottles to collection warehouses for each of the firms. At that point all of the bottles would have to be sorted by size, style, colour, and marketing name, back into boxes. At some point a truck would come by and pick up some of the boxes and take them somewhere. Another truck would take more boxes somewhere else. The next time a truck picked up empties, it would likely take a different selection to a different place… the destination of each type of bottle changed dynamically.

    The bottles would arrive at another warehouse, where they would be sorted out, cleaned, and inspected, then back into the boxes. Some would be stored, awaiting a production run, others would go to a nearby plant where they would be sterilized, filled, and capped. Others would be saved until orders shipping them to another warehouse showed up.

    The filled bottles would go back to the warehouse until they were needed to fill orders, and it would be back on the delivery truck.

    I don’t have comparable amounts of bottles, cans, and boxes to weigh and measure, but I am pretty sure that the same amount of pop took twice the space, and weighed at least twice as much as the cans. The bottles also did a lot more travelling, with all that that implies.

    By contrast, today cans are lighter than their contents, not heavier, and waste small amounts of space. They are of one or two standard form factors, and are arranged in a few shapes, with dimensions determined by the cans. That makes them easier to stack together and ship… taking less space and way fewer trucks, as the various brands are consolidated at distribution warehouses, and one truck will deliver them all to the points of sale. In most cases, those cardboard flats or boxes can be placed directly on shelves, and there are no wooden crates to store and refill with empties, nor are there several pickup trucks coming for them.

    The cans and secondary packaging (boxes/flats) go home with the consumer, and most often end up in the recycling, to be picked up by one and only one recycling truck, running an efficient route rather than zipping from small store to gas station to bar, picking up empties from one firm.

    How do I know all this? Well, in high school I worked part time on one of those trucks; rather later a friend and I did projects at a major soft drink firm.

    Mine was just management information. His was far more challenging – he wrote a system to track, route, and co-ordinate pop production and glass re-use for an entire province. There were about 3 dozen bottling plants, each with different capacities and schedules, as well as different stocks of the syrup for the various drinks, as many extra warehouses where there were not plants, and about 60 different products in three or four different sizes each.

    Optimization was computationally difficult, and required constant inputs on available plant capacities, syrup stocks, sales distribution, pickup distribution, types and sizes of glass at various locations, warehouse stocks, and projected demand. The system continually routed glass, syrup, trucks, and ready product around a province larger than Texas, in a continually changing pattern.

    I leave it to you to estimate which method – cans or refillable glass – uses more energy, resources, etc. I’d be interested in your methodology and conclusions, if you tackle this.

    1. upstater

      We can all understand that the handling of multi-use beverage containers is not “cheaper” for the producer or consumer… My first “job” was at a small super market sorting the returnable bottles. “Inspection” was simply separating them by size and vendor. It took about an hour per day.

      The point is the costs of single use plastics, glass or metals has been externalized.

      Is there really any positive societal benefit to making sugary drinks or alcoholic beverages cheaper to consumer? There is no such thing as a free lunch.

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