Significant Progress in State-Level Waste and Recycling Policies in 2021: EPR, Plastic Bans, and Recycled Content Legislation Advance Together

In 2021, state legislatures across the United States, driven by efforts to address climate change and plastic packaging waste, passed a series of bills aimed at having a lasting impact on local waste and recycling systems. Although many state legislative sessions have concluded, this year has been particularly notable for historically difficult bills finally becoming law, including two extended producer responsibility (EPR) bills for packaging, a major update to bottle deposit systems, multiple plastic bans, and two mandates requiring a certain percentage of recycled content in packaging sold within the state. Many of these policies are also being advanced at the federal level, with Congress considering a large number of recycling-related bills, but these bills are not progressing at the same pace.

Meanwhile, many state-level recycling and waste bills failed to pass, but 2021 was still a notable year for the introduction of climate-related bills, according to Yinka Bode-George, environmental health manager for the National Caucus of Environmental Legislators. "This year we saw many states introduce EPR bills for the first time," she said. "For many states, this year was an election year or an education year for their respective legislatures, so in subsequent years they can flesh out the strategy."

At WasteExpo held in Las Vegas in June, panelists noted that states are setting the tone for recycling, waste, and organics policies that could eventually pave the way for similar federal legislation. Michelle Leonard, senior vice president at SCS Engineers, said industry professionals and lawmakers are now more engaged than at any point in her 30-year career. "We have finally connected climate change, economic development, and protecting public health and safety," she said.

State-level EPR packaging legislation is just the beginning

2021 was a breakthrough year for EPR laws, with Maine becoming the first state to pass a packaging EPR bill, and Oregon's governor on the verge of signing a similar bill. Compared to other countries, the advancement of packaging EPR in the United States has been slower, but the decision by state lawmakers to ultimately enact these laws signals growing momentum and a shift in attitudes toward EPR as a waste management approach.

Most EPR bills introduced this year failed to advance in their respective legislatures, but industry leaders expect EPR momentum to continue through the rest of the year and into the next legislative session—for better or worse. "I think EPR proliferation in the U.S. next year could be broader than this year," said Dan Jameson, vice president of government and regulatory affairs at Republic Services, during a WasteExpo panel discussion. Jameson believes improving packaging design addresses waste issues better than implementing EPR programs, but he added that waste companies need to pay close attention when EPR policies inevitably appear in the states where they operate.

A packaging EPR bill in New York made some progress this year but ultimately did not pass before the state legislative session ended. "We all believe it will be reintroduced at the start of the new session next year," said Andy Moss, northeast region government affairs manager at Waste Connections, during a WasteExpo panel. "We will proactively engage with lawmakers over the summer" to play a more active role in drafting the bill in the next session, he said.

Susan Robinson, senior director of sustainability and policy at Waste Management, said waste haulers have resisted EPR policies for years, but her company and others have begun to see the advantages of working with lawmakers to improve proposals. One area where EPR policies may need improvement is that "EPR does a good job of bringing supply into the system, but it doesn't really create demand, which is a fundamental flaw," she said. "We need to address this so supply and demand grow together, otherwise we will undermine the economics of our system."

Colorado may introduce its own EPR bill next year, said Kate Bailey, policy and research director at Eco-Cycle. The few EPR bills introduced nationally have different "styles," targeting a range of consumer packaging and differing in details such as the degree of producer control over the system. Bailey observed that Colorado has extensively documented other states' approaches to craft legislation that best fits the state's needs.

The state's Department of Public Health and Environment released a literature review of other EPR programs in July and made recommendations on what a future bill might look like. The report calls for "a producer responsibility program similar to Maine's framework approach," but also emphasizes the need for Colorado-specific ideas to improve recycling access, particularly in rural areas of the state, as well as funding mechanisms and other aspects.

Analysts also expect more bottle deposit bills to be reintroduced in states next year. Connecticut successfully passed a law updating its underperforming bottle deposit program and doubling the deposit value, marking the most significant bottle deposit update in years, but the long-running battle between brands and lawmakers may continue to slow efforts in other states to update or change bottle deposit bills.

Plastic bans yield mixed results

This year, states generally adopted bans on plastic bags, straws, and food containers in an effort to curb single-use plastics. Rhode Island's governor signed a law last week prohibiting food service establishments from providing single-use plastic straws unless requested by customers. California has a similar straw law, and many cities have also adopted restrictions or bans—most recently New York City.

The growing popularity of single-use plastic bans is likely to continue into next year and beyond, Bode-George said. Some state legislatures view these bans as an entry point for reducing waste while they develop "a suite of policy solutions" addressing more complex goals such as EPR or recycled content laws. "I don't know if I'd call it a Trojan horse, but if you introduce a big bill with multiple parts, people might say 'no, we could never do that.' But if you introduce a plastic bag ban, they might say 'that's more reasonable,'" she said.

Single-use plastic bans may be seen as "low-hanging fruit," but passing such bills still requires effort, she added. Maryland failed to pass a bill this year banning most plastic bags at the point of sale. Similarly, a California bill aimed at banning certain plastic packaging used in e-commerce died earlier this year; the bill would have prohibited large online retailers from using plastic shipping envelopes or cushioning materials, as well as certain types of expanded polystyrene (EPS) packaging.

• July was a significant month for bag bans, with laws in Maine and Connecticut taking effect on July 1.
• Philadelphia also implemented a bag ban on July 1, potentially opening the door for more Pennsylvania cities. The state may not renew its statewide preemption of local single-use plastics ordinances. A law in Ohio temporarily blocking cities from taxing plastic bags and other single-use plastics took effect in January.
• Colorado became the first state to lift such a preemption, passing a law banning plastic bags and foam containers, effective in 2024. State Representative Lisa Cutter, who sponsored the bill, said she hopes the action will inspire other state legislatures to consider repealing their own plastic ban preemptions.
• Other future bag laws are scheduled to take effect later this year and beyond. Washington state's bag ban begins October 1. The ban was originally set to take effect in January but was delayed due to the COVID-19 pandemic. Meanwhile, Delaware lawmakers recently updated details of its bag ban, indicating that starting July 2022, bags will need to be thicker to be considered reusable. New Jersey's law banning or restricting single-use plastic and paper shopping bags, polystyrene foam food service products, and plastic straws takes effect in 2022.

Brands, lawmakers, and interest groups reach consensus on market development strategies

Washington state, after passing a law in May, will soon require more recycled content in plastic beverage containers, trash bags, and containers for household and personal care products. Lawmakers and brands expect such bills to continue emerging as more brand owners announce commitments to reduce virgin plastic and set specific targets for recycled content by 2025 or 2030.

U.S. brand owners "understand we need to be more proactive on policy" to reach workable compromises between brands and states while meeting ambitious 2025 post-consumer resin goals, said Charlie Schwarze, director of sustainability at Keurig Dr Pepper, during a WasteExpo panel discussion. "We know there is a gap between where we are today and where we need to be in 2025 to provide recycled content for PET bottles, polypropylene, or any other plastic material we need."

Schwarze said Keurig Dr Pepper has not yet formally endorsed specific strategies such as minimum recycled content standards, EPR, or bottle deposit systems, but he and other major companies have a vested interest in "engaging in the conversation" with lawmakers about ways to increase recycled content in their products.

• Connecticut Governor Ned Lamont signed a bill in June giving the state's Department of Energy and Environmental Protection 18 months to develop a plan for implementing a minimum recycled content policy applicable to products sold in the state. The department must coordinate with other states and private sector entities such as the Northeast Recycling Council.
• Maryland Governor Larry Hogan signed a bill in May aimed at developing markets for recycled materials and products by encouraging businesses and state government to use more recycled products and helping hard-to-recycle materials find end markets.
• A bill in New Jersey establishing minimum recycled content standards for bags and plastic containers recently passed the state Senate. S2515 would require rigid plastic non-beverage containers and plastic beverage containers to gradually increase PCR content until reaching a 50% threshold. Plastic bags would eventually need to contain 40% PCR—the same benchmark currently required in California.
• A bill under consideration in the California legislature would mandate recycled content in thermoform packaging, such as clamshells. Some advocates see this as the next step in the state's long-term plan to reduce virgin plastic. Next year, California will begin enforcing the nation's first minimum recycled content law for plastic beverage containers, starting with a minimum of 15% in 2022.

Chemical recycling and conversion technology bills divide environmentalists and the plastics industry

The American Chemistry Council (ACC) clarified its position on recycled content mandates last week, calling on Congress to establish federal policy requiring all plastic packaging to contain at least 30% recycled plastic by 2030. It requested a "national recycled plastics standard" to help achieve this goal, citing a report from an independent commodity intelligence service predicting that the U.S. would need to recycle 13 billion pounds of plastic to meet the requirement.

The ACC is a supporter of chemical recycling, sometimes called advanced recycling, and argues the process is essential to helping the U.S. meet its 2030 goals because it allows for recycling greater volumes and more types of plastics. The process uses technologies such as pyrolysis to break plastics down to the molecular level for use in producing new plastic products or fuels.

Environmental groups opposed to chemical recycling say the processes used to break plastics down to the molecular level could also have harmful impacts on nearby communities. A provision in the proposed Break Free From Plastic Pollution Act brought national attention to these environmental justice concerns by calling for a three-year moratorium on permits for new plastic production facilities and chemical recycling plants to study the potential impacts on surrounding communities. Some opponents also say the process is often used to convert plastics into fuel rather than new plastics, which they argue is not recycling.

• This year, a handful of states passed ACC-supported legislation reclassifying advanced recycling as a manufacturing process rather than solid waste management. The ACC says 14 states have passed such laws, with Louisiana being the most recent. Virginia passed its version of the law in March, while also banning most EPS foam food service containers.
• New Jersey is considering a similar bill that has drawn criticism from environmental groups such as Clean Water Action. The group testified that "'advanced recycling' is a new, more expensive form of incineration" that would prioritize fossil fuel production over new plastics.
• Rhode Island lawmakers, concerned about potential environmental impacts, passed a law last week effectively banning "high-temperature" medical waste treatment facilities in the state. The state's environmental regulatory agency also rejected a proposal from MedRecycler, which planned to build a pyrolysis plant using pyrolysis to burn medical waste, such as gloves and syringes, to generate electricity.

Looking ahead

Many state legislatures have concluded their sessions this year, but bills in places like California, New Jersey, and Massachusetts are still under consideration.

California is experiencing a busy legislative season, recently sending a bill to Governor Gavin Newsom urging President Joe Biden to ratify the Basel Convention to curb exports of low-value waste plastics to developing countries. The state is also considering several bills aimed at fixing its bottle deposit system.

California is also debating SB 343, the "truth in labeling" bill, which would prohibit the use of the word "recyclable" or the chasing arrows symbol on products that cannot be recycled in most communities in the state. Supporters say the bill could set a precedent nationwide. But opponents, including some plastic manufacturers, worry it could restrict the flow of post-consumer plastics to developing PCR markets such as polypropylene. This consideration has permeated bills in other states, particularly Oregon's EPR bill, which established a "truth in labeling" working group aimed at "studying and evaluating misleading or confusing claims about whether certain products are recyclable."

California's statewide commission on recycling markets and curbside recycling released its annual report in June, detailing 30 recommendations on how to increase markets, reduce system costs, reduce contamination, and improve recycling in the state. The report is a follow-up to a draft released in January that offered recommendations to help California achieve its recycling and diversion goals while addressing market development and infrastructure issues. It has influenced several bills currently under consideration in the legislature, including the Basel Convention and truth in labeling bills.

• In June, New Jersey introduced a packaging EPR bill requiring producers of packaged products sold in the state to "adopt and implement packaging product stewardship programs."
• Massachusetts is still considering a bill that would require recycled content in certain packaging and could establish a deposit system. The bill has not yet passed committee, but supporters hope it can make progress in 2022.