Alice Baker

February 19, 2010

Last week, Judge William Pauley of the U.S. District Court in the Southern District of New York postponed oral arguments in a lawsuit against New York City to prevent the implementation of an electronic recycling bill. The postponement was designed to give the parties an opportunity to settle. However, if they are unable to settle, oral arguments will begin in May 2010. The electronic recycling law requires manufactures to take back used and unwanted electronics free of charge for responsible recycling and reuse. In 2008, the New York City Council passed the electronic recycling bill. Mayor Bloomberg vetoed the bill. However, the City Council overrode the Mayor's veto.

Plaintiffs, a number of trade organizations, manufactures and suppliers of computers, telecommunications, business equipment, and information technology services, filed suit on July 24, 2009—a week before the July 31st compliance deadline for manufactures to provide a plan for how the law would be implemented. Plaintiffs allege eight causes of action. Plaintiffs claim that the program violates the dormant commerce clause, the contracts clause, equal protection and substantive due process. Plaintiffs further claim that the program affects a regulatory taking and is an exercise of extraterritorial police power. Finally, plaintiffs claim that the administration of the program is highly burdensome; the burden outweighs any benefit, which might be realized, and that the city failed to complete a proper Environmental Impact Statement as required under the State Environmental Quality Review Act and the City Environmental Quality Review.

The critical issue appears to be a requirement that manufactures provide a pickup service in New York City for any devices weighing more than 15 pounds. In addition to being costly and burdensome to manufactures, plaintiffs assert that the requirement would increase city truck traffic, which would result in increased traffic congestion, additional noise, and exacerbate local air quality impacts and greenhouse gas emissions. However, this requirement is not in the law. It is contained in the rules implementing the law promulgated by the New York Department of Sanitation. Kate Sinding of the Natural Resources Defense Council says it is important to make the distinction between challenges to the regulations and the law. Attacks made to the New York City law are also attacks on "every other law premised on producer responsibility." If the lawsuit were successful it would impact electronic waste recycling across the United States.

Similar electronic recycling bills have been passed and implemented in nineteen states – California, Connecticut, Hawaii, Illinois, Indiana, Maine, Maryland, Michigan, Minnesota, Missouri, New Jersey, North Carolina, Oklahoma, Oregon, Rhode Island, Texas, Virginia, Washington, and West Virginia. New York City's bill is the first such law passed by a municipality. Although the programs enacted in other states vary in degree of burden imposed on manufacturers and the industry, plaintiffs claim that none of the state programs come close to the burden of the New York City law with regard to the costs and resources necessary to comply with the program. Defendant's stress that the burden is not excessive since the law provides manufactures with substantial flexibility in meeting the collection requirements.

Judge Pauley postponed oral arguments to allow the city and plaintiffs time to negotiate a settlement to their disputes. Both sides have responded to the delay by expressing a willingness to discuss possible solutions and work towards "a common goal of developing sound and sustainable electronics recycling program for New York City." However, a delay in the trial also provides more time for the New York State legislature to enact the statewide electronic recycling bill (AB 9049) currently in the Assembly.

Sources:

Complaint, Consumers Elec. Ass'n v. New York City, (S.D.N.Y., July 24, 2009), available at http://www.computertakeback.com/legislation/lawsuit_vs_nyc/filings_090807/lawsuit_vs_nyc_ewaste_law.pdf.

Meline MacCurdy, Electronic Manufacturers Challenge New York City E-Waste Law, Envtl. News, Marten L. Group, Aug. 12, 2009, http://www.martenlaw.com/news/?20090812-nyc-e-waste-law-challenged.

Memorandum of Law from New York City, Consumers Elec. Ass'n v. New York City, (S.D.N.Y., July 24, 2009), available at http://www.computertakeback.com/legislation/lawsuit_vs_nyc/cityfilings_100909/City%20-%20Memorandum%20of%20Law%20in%20Opposition.PDF.

Memorandum of Law from NRDC, Consumers Elec. Ass'n v. New York City, (S.D.N.Y., July 24, 2009), available at http://www.computertakeback.com/legislation/lawsuit_vs_nyc/NRDC_filings/10-09-09%20NRDC%20MOL.pdf.

Nathanial Gronewold, Parties in NYC E-waste Lawsuit Head to Negotiating Table. Greenwire, Feb. 8, 2010, http://www.eenews.net/Greenwire/2010/02/08/11/.

Steven Castle, NYC: Test Case in E-Waste Battle, CEPro, Jan. 15. 2010, http://www.cepro.com/article/nyc_test_case_in_e-waste_battle/.