Dive Brief:

• New York Gov. Kathy Hochul has made extended producer responsibility (EPR) for packaging a priority for her first term by including a provision in her executive budget and calling for the program to start as early as 2026. Her first State of the State report last week called the effort a "landmark proposal" that would help raise recycling rates and divert material from landfills. 
• The proposal calls for producers to either comply with the EPR law individually or join a producer responsibility organization, and producers would need to come up with the details of how to cover the costs of the program and reimburse municipalities or other participating service providers. An advisory committee of stakeholders would consult on more specific details of the plan.
• Hochul also called for eliminating PFAS in food packaging by Dec. 31, 2022, and other packaging by Dec. 31, 2024, in amounts exceeding 100 parts per million by weight. The recommendation comes partly out of concern for how such packaging could potentially release PFAS into the air when burned or show up in leachate when landfilled. 

Dive Insight:

EPR advocates see the move as a significant strategy to enact strong EPR policies in the state, but policy experts say it’s unclear whether it's enough to guarantee the provision will pass. A similar bill introduced last year failed to pass due to a lack of consensus among recycling and environmental stakeholders.

Although previous New York governors have named various EPR efforts as priorities, Hochul is the first to specifically call out EPR for packaging. Maine and Oregon successfully passed EPR for packaging legislation last year, and similar bills are expected to pop up in several other states in 2022.

“In terms of the hierarchy of ways to enact legislation, having the governor's blessing is a very strong show of support and of political will,” said Scott Cassel, CEO of the Product Stewardship Institute (PSI), a nonprofit organization that crafts and supports EPR legislation for packaging and other materials. 

Hochul's State of the State report says that it’s time for New York to require “producers, not taxpayers, to cover the cost of recycling,” adding that effective recycling is a critical part of combating climate change. The waste industry accounts for about 12% of the state’s greenhouse gas emissions, and New York generates about 7 million tons of paper and packaging waste each year, the report states. At the same time, the recycling rate has been decreasing since 2012.

Hochul’s inclusion of EPR in the state budget is seen by supporters as a logical next step in a years-long discussion over how to manage the state’s larger recycling and waste diversion goals. “Local governments are frustrated that recycling is becoming more and more expensive for them, and environmentalists feel we're really not recycling as many product types as we could be [and] that we’re producing too much waste in the first place,” said Patrick McClellan, policy director for the New York League of Conservation Voters. 

While Hochul has set the tone by introducing EPR for packaging to the budget, the state Senate and Assembly are expected to release their own versions of the budget in coming weeks, and the final budget is expected to be finalized in the first week of April. However, lawmakers may continue to consider the issue throughout the legislative session, which ends in June.

The proposal calls for implementing an advisory committee by June 1, 2023, to consult on developing further program details, including annual minimum recovery rates, postconsumer recycled content rates and other considerations. The committee would make its recommendations by April 1, 2024. According to the proposal, the committee must include members from municipalities, environmental organizations, environmental justice communities, the waste and recycling sectors, packaging manufacturers, retailers and other stakeholder groups. The proposal also calls for a third party to conduct a statewide needs assessment to evaluate the state’s existing recycling infrastructure, processing capacity, paper and packaging recovery rates and any barriers to equitable access to recycling and reuse programs. 

Most producers selling packaging or paper products in New York would need to submit a plan for complying with the EPR program no later than April 1, 2025, and would need to start implementing its plan no later than April 1, 2026, according to the proposal. Producers would likely pay more for using hard-to-recycle packaging and would benefit from proving their packaging contains a certain amount of postconsumer recycled content or is particularly easy to recycle, the proposal says. 

McClellan said the governor’s EPR proposal “shares a lot of the same DNA” with last year’s EPR for packaging bill led by state Sen. Todd Kaminski. Under that bill, producers would have been required to finance the recycling of various packaging materials but would have been able to decide how best to do that, either on their own or as part of a producer responsibility organization. Kaminsky was was not able to achieve the consensus to pass the bill.

Alhough policy analysts expect some version of Kaminsky’s bill to return in 2022, the senator’s office has not yet responded to requests for comment on a proposed timeline or how a 2022 version of the bill could change this year. 

During the last legislative session, Kaminsky had said he hoped New York would be the first state to implement an EPR for packaging law. Although New York wasn’t the first, the state could benefit from watching how Maine and Oregon move forward with implementation, said Sydney Harris, policy and programs manager for PSI, which is involved in working with EPR stakeholders. She expects elements of Hochul’s proposal, Kaminsky’s bill and other input from stakeholders to “meld together into a bill that they think makes sense and will circulate that with all the stakeholders.” 

Enacting EPR through the state budget would be a notable move, but there is precedent for New York governors having a role in moving waste policy through the budget process in the past. In 2019, the state legislature passed two waste-related policy changes in its FY20 budget: a ban on plastic carryout bags and a recently enacted organics recycling mandate.

Other issues New York has worked to pass in previous years are also coming back in this new legislative session. Last week, state Sen. Brian Kavanagh introduced an EPR bill for carpeting, and Assemblymember Kevin Cahill has reintroduced a bottle bill update meant to include more types of containers and raise the minimum refund value to 10 cents.