May 28, 2022

Judge overturns NYC’s ban on foam containers

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By Joel Stashenko, From New York Law Journal

New York City’s ban on soft foam coffee cups, plates, egg cartons and other food containers has been struck down by a state judge, who ruled that its adoption was based on a faulty premise about their recycling potential.

Acting Manhattan Supreme Court Justice Margaret Chan ruled as “arbitrary and capricious” a finding by city Sanitation Commissioner Kathryn Garcia that foam containers cannot be recycled because the market for the used material is not economically viable.

With Garcia deciding that recycling the “expanded polystyrene foam” (EPS) containers was not feasible, a ban on their use took effect July 1.

But Garcia failed to consider evidence that was provided by foam manufacturers, recyclers and commercial users of the products, Chan ruled in Matter of the Application of Restaurant Action Alliance NYC v. City of New York, 100734/15.

“In reaching the conclusion that there is no sustainable market for post-consumer EPS in both her environmentally efficient and economic feasibility analysis, the commissioner did not clearly state the basis of her conclusions when the evidence contrary to her findings were clearly before her,” Chan wrote.

The judge decided that Garcia’s determination was inconsistent with the mandate she was given by the New York City Council, and thus should be annulled.

The ban was challenged by an alliance of restaurant groups, plastics manufacturers and recycling companies. The plaintiffs included the Dart Container Corporation, Plastic Recycling Inc., Sims Municipal Recycling and Reynolds Consumer Products.

Garcia acted under Local Law 142, an initiative launched by former Mayor Michael Bloomberg and championed by Mayor Bill de Blasio, under which Bloomberg proposed to “get rid of” single-use foam food containers.

Under the law, the sanitation commissioner had until Jan. 1, 2015, to decide whether recycling of EPS was feasible. If she determined it was not, the ban would be in effect six months later. The local law, however, did not call for penalties for those who ignored the law to kick in until January 2016.

Garcia ruled on Dec. 31, 2014 that EPS “recycleability failed on the basis of environmental effectiveness and economic feasibility” as defined in Local Law 142.

But the plaintiffs claimed Garcia ignored persuasive evidence to the contrary. Specifically, the opponents of the ban argued that both Dart, a large EPS manufacturer, and Plastics Recycling Inc., a major recycler of polystyrene, had presented evidence that EPS recycling was environmentally viable and economically feasible.

In fact, Chan noted, such recycling projects had proven promising in California, and Dart had made a $23 million investment toward an EPS program in New York City.

“The commissioner’s concern is not justified given the abundant evidence showing a viable and growing market for not just clean EPS but post-consumer EPS material [and] that EPS recycling and post-consumer EPS market is beyond the pilot program stages or still paddling in untested waters,” she wrote.

Gibson Dunn & Crutcher partner Randy Mastro represented the plaintiffs.

“We are very gratified by the judge’s decision, and we now look forward to working with the city to implement a comprehensive recycling plan that vastly reduces the volume of our city’s waste stream and generates substantial revenue for the city,” Mastro said in a statement Tuesday. “That’s a ‘win-win’ for everybody.”

Assistant Corporation Counsels Christopher King, Amy McCamphill and Peter Schikler defended Garcia’s decision and the EPS ban law.

There was no immediate word Tuesday from the mayor’s or corporation counsel’s offices whether the city would appeal.

Eric Goldstein, senior attorney with the Natural Resources Defense Council, called Chan’s decision “a ruling that begs to be appealed.”

“The court misinterpreted the evidence and misunderstood the mandate given to the commissioner by the city council,” Goldstein said in an interview. “There is not a single major city in the nation that has successfully recycled this problematic material.”

The NRDC sought unsuccessfully to intervene on the city’s side in the case. It filed an amicus curiae brief supporting the ban.

De Blasio spokeswoman Ishanee Parikh said the decision and a possible appeal were under review. “We disagree with the ruling,” she said. “These products cause real environmental harm, and we need to be able to prevent nearly 30,000 tons of expanded polystyrene waste from entering our landfills, streets, and waterways. We are reviewing our options to keep the ban in effect.”

Containers made from EPS account for about 28,500 tons, or less than 1 percent, of the curbside garbage produced in New York City each year. Garcia herself estimated that the city would save about $400,000 a year if 40 percent less EPS went to landfills and was recouped through recycling programs.

Such material is often referred to as “Styrofoam,” but as Chan noted in her ruling, “Styrofoam” is a registered trademark of the Dow Chemical Company that is used when describing extruded polystyrenes.

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