By statute, the full permanent rulemaking package needed to be submitted to the Office of Administrative Law by March 7, but it wasn’t. | Jonathan Lenz/Shutterstock
California state regulators will head back to the drawing board after the governor declined to accept their draft extended producer responsibility program language, delaying the implementation of EPR for packaging and requiring another round of rulemaking.
The missed deadline also prompted some environmental advocates to suggest reintroducing a 2022 ballot measure that would have had more stringent environmental goals.
By statute, the California Department of Resources Recycling and Recovery needed to submit the full permanent rulemaking package needed to be submitted to the Office of Administrative Law by March 7. However, on Friday afternoon, Gov. Gavin Newsom’s office said the current draft regulations would impose unacceptable burdens on businesses and add costs that would affect consumers, Bloomberg reported.
With the rulemaking deadline missed, regulators will have to convene another series of stakeholder meetings and develop a new draft, but the timeline is not yet clear.
CalRecycle Senior Information Officer Lance Klug told Resource Recycling that in the coming year, “CalRecycle will continue to work with industry, advocates and other interested parties to develop rules that ensure California’s plastic pollution law balances the need to cut plastic pollution with the importance of minimizing costs to families and small businesses.”
Circular Action Alliance, the state producer responsibility organization, said in an emailed statement March 7 that it appreciates “the Governor’s commitment to the effective and efficient implementation of SB 54.”
An additional statement from CAA on March 10 added: “We respect Governor Newsom’s decision to reopen the rulemaking process for SB 54.” The group’s priority “is to ensure the successful and timely execution of this landmark legislation. We are committed to meeting its ambitious goals and to implementing the law as intended.”
“While the reopening of rulemaking introduces a period of review, we are fully prepared to adapt our implementation strategy as needed,” CAA continued. “The additional time provided for refining the regulations will allow us to address critical elements and ensure the program’s long-term success.”
CAA emphasized “the importance of open dialogue throughout this process” and said it appreciates “the continued collaboration and engagement of all interested parties.”
Environmental groups, which had been pressuring Newsom to allow SB 54 to keep moving according to its original timeline, decried the decision.
“Both the State’s and industry’s actions represent a betrayal of the compromise reached in 2022 that led advocates to withdraw a ballot initiative that the industry had strongly opposed,” Break Free From Plastic movement members said in a press release. “The industry has worked to undermine SB 54 ever since its passage, all while plastic pollution has dramatically increased.”
The pressure of the public ballot measure ultimately brought industry stakeholders to the table, those involved with the bill said at the time. And Break Free From Plastic wrote that advocates are “reevaluating all possible avenues to achieving the targets and goals in SB 54, including reviving the ballot initiative to let voters decide this issue.”
“The plastics industry again proves that they cannot be trusted to live by agreements negotiated with advocates, the Legislature, and the Governor’s office,” the organization wrote. “Even if new regulations are ultimately adopted, the industry has made it clear that they are simply not serious about meaningfully reducing the amount of plastic pollution that they create and from which they profit.”
Rachel Michelin, president and CEO of the California Retailers Association, is a nonvoting member of the SB 54 advisory board and said at a Feb. 21 board meeting: “Our position has always been that we want SB 54 to work.
“I can tell you there are going to be unintended consequences if we don’t do this right,” she said. “Everyone is watching across the country to see how we do this in California, and if we rush this through and don’t take the time to do it effectively and efficiently, we’re going to all be facing the consequences of it going forward, not just for SB 54 – I know others of us work on other EPR programs that are building upon what’s in the regulatory package.”
Making a public comment at the meeting, Anja Brandon, director of plastics policy at Ocean Conservancy, said delaying or undermining SB 54 would also have ripple effects on other EPR legislation.
“Right now we are in a moment where delays or any undermining of SB 54 risks broader stakeholder support for EPR across the United States,” she said, encouraging everyone to “move from theoretical concerns to actually implementing this law.”
In a March 7 press release, CALPIRG State Director Jenn Engstrom said the organization was “very concerned by Governor Newsom’s decision to delay implementation.”
“Pollution from single-use plastic packaging is now at a crisis level — harming our environment, cluttering our communities, and threatening public health,” Engstrom said. “We cannot delay tackling this problem, so we hope the governor will stand strongly against the scourge of plastic waste and see that our state meets the Plastic Pollution Producer Responsibility Act’s goals and timeline.”
In the Break Free from Plastics press release, Californians Against Waste Director of Advocacy Nick Lapis said it was “disappointing — but ultimately not surprising — that the industry is backing away from its commitment to tackle plastic pollution and trying to slow down the process that they themselves agreed to.”
Michael Washburn, a consultant on sustainability and public affairs for Washburn Consulting, said he’s heard “relief across the board” from producers but also has some concerns over whether extending the timeline alleviates technical hurdles for producers, especially around source reduction and using alternative materials.
If the rulemaking proceeds again just like it did the first time, Washburn said, it could be only “kicking the can down the road.”
“I would love to see a process where we could get really precise about a set of technical standards,” he said, especially around alternative packaging materials. He’d also like “a meaningful discussion about the role that advanced (chemical) recycling can play in the space.”
Washburn added that the delay may have ripple effects for EPR implementation in Oregon and Colorado, which may now come under closer scrutiny, especially in the macroeconomic context of tariffs and uncertainty.
“If we’re going to be given more time, let’s use that time to ensure we’re thinking through the real problems that need to be solved, not just repeating the process again later,” he said. “That’s what I’m afraid we’re going to do.”