Future of recycling policy in California could be decided soon

California flag and U.S. flag with blue sky background.

California legislators, environmentalists and industry groups are working on a plastics pollution and recycling bill that they hope will persuade ballot measure backers to withdraw their initiative before the deadline at the end of this month. | rarrarorro/Shutterstock

As recycling policy continues to garner attention nationwide, California has emerged as a battleground over two different philosophies for addressing plastics pollution and recycling – and a key deadline in the action is looming.

One approach is Senate Bill 54, the amended text of which was released late last week.

The legislation, which has appeared in different iterations over the past three years, would create a producer responsibility organization (PRO) to run a collection and recycling program with state oversight, establishing a form of extended producer responsibility (EPR) for printed paper and packaging in America’s most populous state.

The other vision is laid out in a ballot measure that would put responsibility for running an improved recycling system fully in the hands of the California Department of Resources Recycling and Recovery (CalRecycle), with funding coming by way of an aggressive plastic tax.

California legislators, environmentalists and industry representatives have been working to finalize language in SB 54, in hopes that a comprehensive bill will convince ballot measure backers to withdraw their proposal.

To remove the measure from the ballot, the three petitioners behind it would have to agree to do so 130 days before the Nov. 8 election. That means SB 54 would need to pass out of both the Assembly and Senate by June 29.

Heidi Sanborn, executive director of the National Stewardship Action Council, is among the recycling industry and environmental voices who are pushing for SB 54. She calls the bill “improved EPR.”

“In framework, I believe it is the most comprehensive and environmentally progessive program in the country, if it were to pass,” Sanborn said.

Initiative has been in the background

Over the past two years, the California plastics tax ballot initiative has loomed large in the background of recycling legislation conversations in the state.

The California Recycling and Plastic Pollution Reduction Act ballot effort, originally submitted in November 2019, aims to build up both recycling infrastructure and composting infrastructure, along with other areas, all funded by a plastic tax paid by manufacturers.

“As the fifth largest economy in the world and a global center of innovation, California has a responsibility and ability to lead on solutions to the growing plastic pollution crisis and waste reduction generally,” the initiative text reads.

The three petitioners behind the initiative are Linda Escalante, Southern California legislative director for the Natural Resources Defense Council; Michael Sangiacomo, former president of waste management firm Recology; and Caryl Hart, vice chair of the California Coastal Commission.

The initiative and competing bill have received local media coverage of late, from the San Francisco Chronicle and the Los Angeles Times, an indication that plastics and recycling are very hot political topics in the Golden State right now.

Sanborn said she expected any plastic reduction plan to be fought over and hotly contested, “and that’s fine.”

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“It’s normal. It should be, because it affects a lot of people for a long period of time and a lot of businesses,” she said.

Sanborn added she’s focused on getting “the very best bill we can get, as long as it will work and it will not impede future progress.”

She said the bill will prevent a costly ballot measure fight over complicated language that will be hard for the public to dig into and understand, especially as both sides use sound bites and mailers to put out messaging.

“I, personally, am strongly supporting this bill, and not because it’s perfect, because I believe perfect is the enemy of good. We’ve already waited way too long. The public wants something done.” – Heidi Sanborn, National Stewardship Action Council

What Senate Bill 54 would do

SB 54, the Plastic Pollution Producer Responsibility Act, would mandate a 25% reduction of single-use plastic packaging and foodservice products by 2032 and require that the remainder of the products be recyclable or compostable; shift a portion of material to reuse or refill; call for a needs assessment, paid for by the producer responsibility organization but overseen by CalRecycle; and introduce eco-modulated fees that incentivize producers to use sustainable, recyclable or reusable materials.

The bill also would set up a California Plastic Pollution Mitigation Fund to pay to address existing environmental damage and health impacts, which the PRO would have to fund via an environmental mitigation surcharge. It will start at $500 million per year, with 60% focused on low-income, disadvantaged and rural communities. Sanborn said CalRecycle could adjust the amount of the fund in the future.

Sanborn said the fund ensures that the bill does not only make certain that producers are responsible for future choices, but that they take responsibility for cleaning up after past choices.

“I, personally, am strongly supporting this bill, and not because it’s perfect, because I believe perfect is the enemy of good,” Sanborn said. “We’ve already waited way too long. The public wants something done.”

SB 54 has industry support and the backing of several prominent environmental groups, including the Nature Conservancy and the Ocean Conservancy.

Anja Brandon, U.S. plastics policy analyst at Ocean Conservancy and a principal contributor to the bill’s text, said in a press release that “without a doubt this bill, if passed, would be the strongest plastics legislation we have ever seen here in the United States.”

What the initiative would mandate

The California Recycling and Plastic Pollution Reduction Act initiative would require all single-use plastic packaging and foodware products to be recyclable, reusable, refillable or compostable by 2030 and calls for single-use plastic production in the state to be reduced by 25% by 2030, two years sooner than SB 54.

The initiative bans polystyrene and requires producers and distributors of plastic products to pay for the improvement of state collection and processing infrastructure, as well as environmental mitigation, via a fee of no more than 1 cent per item. According to an analysis from the state’s Legislative Analyst’s Office, the total magnitude of the revenue that tax will generate is “uncertain but possibly in the range of a few billion dollars annually in the near term.”

CalRecycle is directed to establish mechanisms for convenient consumer access and to establish and enforce labeling standards under the initiative.

The initiative also seeks to “relieve local governments and taxpayers from the costs of single-use plastic packaging” by establishing a California Plastic Pollution Reduction Fund to support infrastructure and litter abatement, composting, recycling, reuse and environmental restoration, the initiative text said – much broader infrastructure than laid out in SB 54.

Whatever amount the fee brought in, 50% would go to CalRecycle to help it implement and enforce the measure and for statewide recycling, reduction and composting infrastructure. Another 30% would go to the California Natural Resources Agency for state and local grants to address the environmental impacts of plastic pollution.

Within the California Plastic Pollution Reduction Fund would be another Local Government Fund, made up of 20% of the money in the larger fund. That government fund would be used by local governments to invest in “priority populations.” The initiative calls for a minimum of 25% of the local fund to go to projects in disadvantaged communities, a minimum of 5% to projects that benefit low-income households in disadvantaged communities and a minimum of 5% to projects that benefit low-income households within a half-mile outside of disadvantaged communities.

“If the legislature fails to act on this landmark opportunity with SB 54, we will do everything we can to pass the ballot measure. This is the year California will lead on this issue.” – Jeff Watters, The Ocean Conservancy

The initiative also calls for programs to help develop end markets for various materials.

The Ocean Conservancy has come out in support of the initiative. Jeff Watters, vice president of external affairs, said his priority is “fewer plastics on shelves and less plastic in our ocean, and both the ballot measure and SB 54 can get us there.”

“If the legislature fails to act on this landmark opportunity with SB 54, we will do everything we can to pass the ballot measure,” he added. “This is the year California will lead on this issue.”

Dividing lines between two approaches

A key difference between the bill and the initiative is the amount of rule-setting that is left to CalRecycle. The initiative directs the state department to run a program and set rules, while the bill calls for collaboration between a PRO and CalRecycle and lays out more guidelines in the bill text.

This is the basis for the rift in environmental non-governmental organizations (NGOs), said Nick Lapis, director of advocacy for Californians Against Waste (CAW).

“There is a split among environmental NGOs on the bill, with some organizations supporting it and many of us not supporting it,” Lapis said. CAW supports the ballot initiative. “I think we probably just have a slight philosophical difference on the best way to tackle this problem and a different read of the politics.”

Sanborn said while the collaborative approach of SB 54 has drawn criticism for letting the industry have some control of the solution, she said industry buy-in will help the program succeed, and that CalRecycle would still have the final say on budgets and plans the PRO submits.

“CalRecycle has tremendous authority,” she said of SB 54 rulemaking, noting that the agency can require greater source reduction if plastic levels continue to grow after 2032.

Dylan de Thomas, vice president of external affairs with The Recycling Partnership, said that under SB 54, CalRecyle’s oversight starts in the very beginning at the needs assessment stage, then continues to approving the PRO’s plan, along with the advisory council, which includes stakeholders from the recycling industry, brands, the environmental justice community and the state.

“The way I like to look at it is CalRecycle is going to be consulted at the beginning and the end and ultimately all the way though, which is an appropriate way,” de Thomas said. “It still gives the producers who are tasked with paying the fees the opportunity to creatively work though how to reach all of the mandates that are in the legislation.”

And if the PRO-style program appears to be running into problems, like California’s carpet PRO has, CalRecycle can take control, Sanborn said. CalRecycle can also levy fines of $50,000 a day for noncompliance, either on the PRO or individual producers. The initiative calls for the same level of fines.

“These are big enforcement tools, bigger than I’ve ever seen, and we want CalRecycle to have a lot of authority,” Sanborn said. “If this (PRO system) fails to work, you want to be able to remove control from that PRO and be sure the public is getting the program they want.”

There is also an advisory committee section of SB 54, to “keep eyes on the program,” Sanborn said.

“To me, this is the simplest and most elegant way to change corporate behavior,” she said. “Make the polluter pay,” and use money to incentivize good behavior, “which is what corporations respond to.”

“The ballot initiative is very broad and doesn’t have a great deal of structure around the outcomes it’s trying to achieve.” – Dylan de Thomas, The Recycling Partnership

The ballot measure also makes polluters pay, but in a different format. Lapis said the most striking difference between the bill and the initiative is that the initiative’s tax will put money back into the state.

“That money is being invested in composting and recycling infrastructure, natural resources and wetland conservation. The bill allows the PRO to assess a fee on themselves to fund what they determine are the needs of a statewide recycling program,” Lapis said.

The Recycling Partnership’s de Thomas said SB 54 takes the goals of the initiative and gives them a structure and roadmap. He added that the initiative “doesn’t have the detail you would hope to see in something that would impact such a huge system.”

“The ballot initiative is very broad and doesn’t have a great deal of structure around the outcomes it’s trying to achieve,” he said, noting that SB 54 took much of the content of the ballot initiative, like source reduction, “and puts it in a rational form that is akin to EPR for printed paper and packaging, which has existed for three decades in countries and provinces all over the world.”

Bruce Magnani, vice president and partner at Houston Magnani and Associates and lobbyist for the Association of Plastic Recyclers (APR), told attendees of the June APR members meeting held in Milwaukee that because the initiative language is less specific than SB 54, it will give CalRecycle “unfettered power.” (APR owns Resource Recycling, Inc.)

Another area of contention between the bill and the initiative is expanded polystyrene. Lapis said the initiative has an expanded polystyrene ban “that is not in the bill, though the bill tries to get there by requiring a 20% recycling rate by 2025, which they refer to as a de facto ban.”

Sanborn said while she would have liked to have seen a ban on expanded polystyrene, it was difficult to negotiate. Because the material is very difficult to recycle, she also said that a mandate of a 20% recycling rate is essentially a ban.

“I don’t care what you call it, I just want to see a result,” she said.

The U.S. Plastics Pact deemed polystyrene problematic in its most recent list, saying it should be phased out in coming years. Founded by The Recycling Partnership and the World Wildlife Fund in 2020 to help address plastic pollution, the U.S. Plastics Pact has about 100 participants, called “activators,” including Amcor, Aldi, Coca-Cola, Colgate-Palmolive, Danone North America, General Mills and Keurig Dr Pepper.

“I’ve seen a half-dozen polls that all showed that the public supports this ballot measure two to one. I think the only strategy for the industry, even with unlimited money, is to try to confuse voters and talk about anything other than what’s in the ballot measure, because I’m sure they have the same polling I do.” – Nick Lapis, Californians Against Waste

What would voters do?

As inflation rises and “people can’t get gas and baby food,” Sanborn predicted a ballot initiative would be open to economic attacks from industry.

Magnani said he also thinks the current environment is “ripe to defeat that ballot initiative.”

A funding committee against the ballot measure, called “Stop The Tax On Working Families, A Coalition Of Taxpayer Groups And Business Associations Advocating To Keep California Affordable” formed on April 19, according to California Secretary of State records.

So far, it has received $350,000 from the California Business Roundtable PAC and $250,000 from the American Chemistry Council (ACC).

Recology helped bankroll the multi-million-dollar campaign to qualify the initiative for the ballot by gathering signatures from voters around California. It has since stepped back from the political effort, with the expectation that environmental groups will step up to finance the push to persuade “yes” votes this fall.

Magnani said he’s been impressed with how far negotiations on SB 54 have gone and “will be very disappointed if it does not get across the finish line.”

Lapis said public polling has shown strong support for the initiative and he thinks it can succeed.

“I’ve seen a half-dozen polls that all showed that the public supports this ballot measure two to one,” Lapis said. “I think the only strategy for the industry, even with unlimited money, is to try to confuse voters and talk about anything other than what’s in the ballot measure, because I’m sure they have the same polling I do.”

If both SB 54 and the initiative fail, Magnani warned that based on history, the next step might be “a bunch of one-off bills instead of one comprehensive one” that address plastics resin by resin, which would be more challenging to navigate.