EPR for Packaging is (finally!) now law in the US.
Maine’s Governor signs historic bill into law
A few weeks ago, I got a text from my friend and colleague Sarah Nichols at the Natural Resources Council of Maine (NRCM): “Was at the State House until a record 4AM, but that big beautiful packaging EPR bill is on the Governor’s Desk!”
Then earlier this week, I received the great news:
On July 12, 2021, Governor Mills signed LD 1541 into law, making Maine the first state in the nation to pass an Extended Producer Responsibility (EPR) for Packaging law.
I took a deep breath and then jumped into an awkward fist-pumping dance around my office. For me, this moment was nearly 20 years in the making.
Prior to joining Upstream, I spent 8 years at NRCM. My first day on the job way back in 2003, I was tasked with organizing a press conference on one of our signature bills, which ended up becoming the first extended producer responsibility (EPR) law for electronics in the United States.
Having just come out of school for environmental policy, I had studied EPR – especially Germany’s Green Dot program which paved the way for the European packaging directive. That directive (passed in 1994) led to the creation, implementation, and harmonization of packaging EPR systems across the continent.
I was sure that packaging EPR would soon follow e-waste, and was eager to work on another first-in-the-nation law.
We made progress in Maine, and I had the opportunity to help pass precedent-setting EPR laws for mercury-containing thermostats, light bulbs, cell phones, batteries and the country’s first EPR framework law.
But packaging EPR was seen as too big, too ambitious, and that we just weren’t ready to take on every industry under the sun.
“EPR for packaging is a foundational policy for a circular economy, and we need to get it firmly established in the United States.”
2011: A movement grows for packaging-EPR
That all changed when I joined Upstream in 2011.
Feeling the pressure from shareholder advocacy groups like As You Sow, Nestle Waters had tentatively come out in support of EPR for packaging. Coca-Cola soon followed, but cynically only worked in bottle bill states, asking legislators to trade getting rid of their container-deposit laws (the original producer responsibility laws) for EPR.
We saw Nestle and Coca-Cola’s entry into the EPR space as a huge opportunity, but also a major threat.
So we jumped into convening stakeholder dialogues and worked to build alignment and power across key sectors.
We held one for city government leaders and crafted a framework with principles for new EPR legislation. We held a similar dialogue with the solid waste and recycling industry. And we co-organized and facilitated a two-day conference with major brands, retailers and NGOs like NRDC, with Future 500.
Nestle created an organization called Recycling Reinvented as its advocacy arm, and we worked with all these different groups to craft legislation which was eventually introduced in a half dozen states from 2013 through 2014.
The original model bill was based on EU/Canadian-style full EPR legislation. This made producers 100% responsible for the costs of recycling, but also gave them most of the control and self-determination to decide how those systems were run.
But this model didn’t win enough support to pass.
I covered this moment in a previous piece:
While they would be happy to take money from brands under EPR, many local governments didn’t want to lose control of their operations. And the big players in the solid waste and recycling industries didn’t want their business models upended. Perhaps, most of all, consumer brands and their associations – which led the opposition – didn’t feel like they had to do anything. A little sprinkling of money here and there on recycling initiatives for some good PR seemed to be enough to keep the regulators at bay.
2014: Back to the drawing board
So, we went back to the drawing board. My colleague Jamie Rhodes and I had become intrigued by an obscure development in Delaware.
The beverage industry had persuaded the State Legislature to abandon their bottle bill in trade for funding a statewide universal recycling program. The bottle bill had unfortunately been one of the few container-deposit failures, as it only covered certain types and sizes of bottles, and the economics weren’t good enough to develop the redemption infrastructure critical to success.
The beverage industry had agreed to pay millions of dollars over a number of years to a fund that would be administered by a board comprised of waste companies, city governments, brands, packaging suppliers and environmental groups. That fund would go out as competitive grants and loans to create the infrastructure and markets for a robust statewide recycling system.
Around this time, the Closed Loop Fund was started by major brands on a similar but voluntary initiative to pool money from brands to invest in recycling infrastructure across the US.
I traveled to Delaware to see the board in action and left convinced that this was a viable path forward for EPR in the U.S.
Essentially, require the brands to have some “skin in the game” by paying into a trust fund, but share the control of the system through having the funds administered by a third-party board of producers and local stakeholders - including environmental groups.
Jamie and I spent weeks drafting model legislation, and we worked with partners to get it introduced in several states in 2014-2015.
We got very close in Rhode Island, but ultimately could not overcome the opposition from brands and the local business community. Nestle went through a series of leadership changes and essentially walked away from their investment in EPR.
Without a brand championing the idea, we wondered how we were ever going to overcome the opposition.
2016: A poster child for EPR
So we went in search of a poster child for EPR and found it in plastics.
At this point, I thought we would be back in State Legislatures in a year or so. But it eventually took five years to build the kind of momentum and power to shift the entrenched opposition from brands.
I think the biggest credit for why this shift happened was because of the incredible work from Break Free From Plastic groups to turn beach clean-ups into “brand audits” – to identify and track the brands associated with the plastic products collected.
China’s National Sword policy - putting the economics and benefits of recycling under scrutiny - has also been a major factor.
2021: Getting to the finish line
But even with some tentative support from brands, the Maine bill and others have encountered massive opposition from business groups - both national and local.
In my experience, enshrining new big-picture policy ideas in law requires powerful coalitions that usually revolve around the leadership and organizing of one or a few organizations. And in many cases, one organizer is chiefly responsible for getting the bill to the finish line.
In Maine’s case, that organization was NRCM, and that organizer is Sarah Nichols.
As Sarah wrote recently, “The plastics industry and multinational corporations have reaped billions while they let plastic waste and packaging drive up costs for taxpayers and pollute the environment.”
And of course, these are the problems that EPR aims to solve - to prevent big brands from getting a free ride from local governments and taxpayers for their packaging waste and the pollution it causes.
From NRCM, here’s how the law works:
A new Stewardship Organization (SO) will be formed to administer the program, track progress toward goals, and report back to the State.
Producers pay annual fees to the SO that are based on the amount and type of packaging they sell into Maine. Then the SO reimburses municipalities annually for the costs they have incurred because of that packaging.
All participating municipalities will have a minimum list of recyclables that they have to take to be eligible for reimbursement, which will make statewide education easier.
There will be extra funds for investments in waste reduction and recycling education and infrastructure in cities and towns across Maine.
The Maine bill doesn’t follow the EU full-EPR 100% producer responsibility/control model. Instead, it’s a hybrid shared responsibility model, which incorporates a producer responsibility organization for governance, but is more prescriptive about how the funds raised will be allocated - including specifying reimbursement for municipal recycling - thus balancing control with local governments..
The future
From our perspective, more and better recycling and litter prevention are laudable goals.
But we also need to focus our attention on the drivers for reuse. (Historically EPR has supported more recycling, but not source reduction and reuse.)
We’re working with our friends and allies to ensure that new EPR bills also include provisions requiring financial support for new reuse infrastructure and include source reduction plans and targets that achieve reduce/eliminate, reuse and refill. See our recommendations here.
As I write this, our friends at the Ocean Plastic Leadership Network and the Meridian Institute are holding dialogues with brands and NGOs to better align around specific issues and new ideas.
But leaving improvements aside, now is the time to celebrate this historic win.
As I’ve written before, “EPR for packaging is a foundational policy for a circular economy, and we need to get it firmly established in the United States.”
We have our friends in Maine to thank for being the first domino in a chain of many more soon-to-be passed EPR laws - once again.
