By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
California lawmakers and environmental activists have launched a campaign to press the Biden administration to pursue congressional ratification of the 1989 Basel Convention, according to Waste Dive.
The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal was adopted in 1989. Although the United States signed the agreement, it’s one of only eight countries, including East Timor, Grenada, Haiti, San Marino, South Sudan, Fiji, and the Solomon Islands that have not ratified the convention, and the only OECD country to have failed to do so.
The parties to the convention recently adopted further amendments to cover shipment of plastics waste. According to the Environmental Protection Agency (EPA):
Basel plastic scrap and waste amendments were adopted by Parties to the Basel Convention in 2019 to control exports and imports of most plastic scrap and waste. As a result of these changes, transboundary movements of most plastic scrap and waste to countries party to the Convention are allowed only with the prior written consent of the importing country and any transit countries, a process known as prior notice and consent. The amendments take effect on January 1, 2021.
California state Assembly member Cristina Garcia has scheduled a hearing on June 14 on (non-binding) Resolution AJR-4,, which calls for U.S.ratification of the Basel Convention. Proponents argue that “[U.S.]ratification would help curb the export of certain types of plastic pollution from U.S. ports, particularly in California, which the Basel Action Network says is responsible for about 27% of “plastic waste,” according to Waste Dive.
Letter to Biden
On May 13, several environmental NGOS sent a letter to Biden, urging U.S. ratification of the Basel Convention, including subsequent amendments.
The letter outlined concerns about Biden policy on this issue so far:
The Biden Administration has signaled strongly that environmental justice is now a major concern of its Environmental agenda. On January 27, 2021, President Biden signed the executive order on Climate Change, which established the Environmental Justice Interagency Council and an Environmental Justice Advisory Council. On March 29 the latter Council was announced with 26 newly assigned civil society and academic member experts, and at this time EPA Administrator Michael Regan stated that environmental justice would be a major priority for the agency during his tenure. Environmental justice aims to address disproportionately negative effects of environmental and climate degradation on vulnerable communities.
The development of the Biden Administration’s strong domestic environmental justice agenda is very welcome and appropriate, but we are concerned that this agenda not be limited to actions within US national borders. It is vital that US actions to eliminate environmental injustice be applicable worldwide. Our concern, in this regard, was heightened at a recent EPA and State Department stakeholders meeting on the Basel Convention that took place on March 29, 2021 — the same day the Environmental Justice Advisory Council was announced.
The Basel Convention is the global treaty that seeks to prevent uncontrolled exports of hazardous and other wastes between countries and particularly trade in these wastes from developed to developing countries. Despite having signed the Convention in 1989, the US has never ratified it and is now the only developed country in the world having failed to do so. In 2019, the Basel Convention was amended to prohibit exports of all hazardous wastes from developed to developing countries. This amendment is known as the Basel Ban Amendment and was enacted as an instrument to uphold global environmental justice. It is considered one of the most important achievement of the Convention, its only successful textual amendment, and has long been supported by all the European Union as well as by almost all developing countries. Currently, 100 countries have ratified the Amendment.
At the aforementioned stakeholders meeting, the State Department Representative John Thompson stated that the US was considering possibly not ratifying the Convention but was also exploring ways in which it might be able to ratify the treaty without accepting the Basel Ban Amendment found now as new Article 4a.4 It is very disturbing to realize that the Biden Administration, while advancing environmental justice at home, are seeking to find a way to avoid environmental justice on the global stage.
As the Basel Convention allows for no reservations or exceptions; from a legal standpoint, the US stated intention of exploring an option to create such a “reservation” is an alarming indication of a desperate willingness to directly undermine environmental justice, even as accepted by the global community at large [citations omitted].
The NGO letter further elaborated on the recent Basel Convention amendments regarding plastics waste exports:
In May of 2019, the Basel Convention also achieved another landmark agreement, and began for the first time to address the plastic waste crisis by adding new listings for plastic wastes. As of January 1, of this year, Basel Parties will be asked to control and sometimes prohibit the export of contaminated and mixed difficult-to-recycle plastic wastes. Plastic waste is also a serious environmental justice issue, as the US and other developed countries have for years exported mixed and contaminated plastic wastes to China. After China banned the importation of this waste in 2018, the waste now moves to other Asian countries. The wastes are often sent to poor farming communities for recycling but are not cleanly and safely recycled but instead are picked through for the higher value material, with the rest being dumped and burned in open fields. Unfortunately, the US, not being a Party to the Basel Convention, continues to export these newly listed Basel wastes to countries that cannot legally accept them from the US, without any controls, thus aiding and abetting illegal trafficking in plastic waste. Indeed,US plastic waste brokers continue tosend 2,440 metric tonnes per month to non-OECD (Organization for Economic Cooperation and Development) countries [citation omitted].
And finally, the letter also addressed the issue of eWaste:
Apart from acting against the worst of the plastic waste crisis, the Basel Convention has also been able to control and prevent the damaging trade and dumping of electronic wastes (such as our old lead-acid car batteries, old computers, monitors and peripherals, laden as they are with toxic heavy metals and organic compounds). Yet again, by remaining the only developed country in the world that has failed to ratify the Convention, the US utterly fails global environmental justice by enabling some of its industries to profit from the poisoning of some of the world’s poorest communities. To this day, it is completely legal for US waste brokers and recyclers to export hazardous electronic wastes to any country in the world without any controls whatsoever, even when the receipt of such wastes is unwanted and illegal in the importing country. Ratifying the full Basel Convention would once and for all prevent these types of harmful, uncontrolled exports.
Previous U.S. Efforts to Undermine the Basel Convention
The letter also detailed previous U.S. efforts to undermine the Basel Convention:
— Throughout the entire history of the Basel Convention from 1989 to the present day, the US, even as a non-Party observer, has actively and aggressively opposed the Basel Ban Amendment.
— Likewise, the US actively opposed the global adoption of new listings on plastic wastes to provide greater transparency and controls on plastic waste trade to protect global plastic waste dumping on developing countries. These agreements were adopted nonetheless in May of 2019.
— Following the consensus adoption of the new Basel Convention listings on plastic waste in May of 2019, the US intervened at the OECD to prevent the OECD from automatically adopting these new Basel listings in the OECD waste trade agreement. It also failed in this effort and as a result, the OECD agreement will not cover plastic waste anymore, and other OECD members will not be able to trade in plastic waste with the US without a special agreement.
— In October of 2020, the State Department and EPA, consulting only with industry and not with environmental organizations, signed a secretive deal with Canada to ignore the new Basel controls with respect to trade between the two countries. Such a deal was not legal under the Basel Convention’s Article 1, but was hastily signed anyway to allow Canadian waste traders to use the US as a place where their exports can be accomplished legally to developing countries without controls [citations omitted].
The Bottom Line
The Biden administration is gaining a reputation for pursuing effective environmental regulation. Is that reputation deserved? Or, as was the case with previous neo-liberal Democrats administrations, will Biden’s commitment to the environment focus on rhetoric, PR, and messaging, and not lead to much concrete action, especially with respect to environmental protections for developing countries.
The letter outlined four steps Biden should now take:
1. Cease US antagonism to the Basel Convention and the Basel Ban Amendment and take the necessary steps to facilitate and approve ratification of the full Convention, including the new Article 4a and Annex VII (Ban Amendment), at the earliest possible date.
2. Ensure that the implementation legislation for adoption of the Basel Convention includes a full ban on exports, not only of hazardous wastes as prescribed by the Ban Amendment, but also of Basel Annex II wastes (which include the new listings of mixed and dirty plastic waste, household waste, and incinerator ashes).
3. Reverse the US position taken at the OECD and allow the automatic adoption of the new Plastic Amendments by the OECD in their Council Decision on trade in recyclable wastes.
4. Annul the ill-advised and illegal US — Canada Arrangement, signed on October of 2020, allowing rather for the OECD agreement to once again preside over trade in Basel wastes between the US and Canada and other OECD countries [citations omitted].
I shall be watching closely to see just what actions the new administration takes on these issues.