When a New York State Supreme Court judge ruled on September 21 to overturn the city’s ban on plastic-foam containers, many sustainability-minded New Yorkers bemoaned the decision as an unwarranted strike against a smart environmental policy.
And why wouldn’t they? On its face, it seems obvious that barring the distribution of the ubiquitous takeout containers in favor of recyclable alternatives would lead to less trash in landfills and fewer bits of plastic foam littering the city’s streets and clogging its waterways.
But some of those celebrating Justice Margaret A. Chan’s decision overturning the ban — including the plastic-foam industry — are actually arguing that environmentalists should be celebrating with them.
“Even if you don’t want foam around, our proposal did a better job of making sure it’s not around,” argues Michael Westerfield, the director of recycling for Dart Container Corporation, one of the biggest manufacturers of plastic-foam products for the food industry. “Our program will divert more foam from landfills than their partial ban will.”
That’s right: The plastics industry is arguing that the judge’s decision allowing the sale of plastic-foam takeout containers isn’t just legally correct, it’s better for the environment.
The argument basically boils down to a dispute with the city and environmental advocates over whether the polystyrene containers are, in fact, recyclable and what proportion of the material would be affected by the city’s ban. For its part, the city’s sanitation department ruled the material isn’t recyclable, and Mayor Bill de Blasio’s administration claims the 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.”
But Westerfield largely disputes that assessment, arguing that the city ignored the alternative recycling program the industry proposed, opting instead to go with a “political” solution.
“It wasn’t a true determination on the recyclability of foam, and the courts agreed,” he says of the ban. “Anybody that takes the time to look at [the city’s] numbers — they didn’t ban 30,000 tons.” The city’s ban only would affect about 20 percent of those 30,000 tons, he argues, because it didn’t include items such as block foam, fish boxes, ice coolers, egg cartons, and meat packaging.
As an alternative to the ban, Dart agreed to pay the entire cost of upgrading the city’s recycling facilities ($2.45 million) to sort plastic-foam products — and lined up a company to buy the recycled material from the city for the next five years. Westerfield estimates that could bring in roughly $2 million in net annual revenue.
The industry claims, in other words, that instead of banning about 20 percent of the foam that’s currently thrown away in New York, the judge’s decision could allow the city to recycle all plastic-foam products.
But some environmental advocates vehemently disagree that the industry’s “recycling” program deserves the name, or even makes economic sense.
“We’re skeptical of the 20 percent figure, but even if that’s true, it’s a mistake to conclude that the industry recycling program would be able to capture most of the food and beverage containers in the city today,” says Eric A. Goldstein, a lawyer at the Natural Resources Defense Council, which supported the city’s legal case. The containers are “thrown away in streets and offices and homes — most [would] not even be collected as part of a recycling program.”
Perhaps the most pernicious aspect of the industry’s argument, Goldstein argues, is that the city will be able to sell the sorted plastic-foam products and make money off the program. “[The industry’s] plan is to temporarily subsidize the program and create an artificial market. That leaves the city in a lurch five years from now.” When the current agreement runs out, he says, the city would be unlikely to find any bidders for used plastic-foam products. “There’s not a single major city or town that has a successful program for recycling polystyrene food or beverage containers,” he adds.
For the city’s part, it is not immediately clear if it will appeal the ruling: “We are reviewing our options to keep the ban in effect,” de Blasio’s office tells the Voice. Also unclear is whether the ban, which took effect July 1, might have a lasting effect even if it is never reinstated.
In some cases, restaurants have already made the transition away from the polystyrene products and probably won’t go back (businesses were given until January 2016 to make the switch). But other eateries say they plan to revert to plastic-foam products because of the judge’s decision.
The Jamaican Restaurant and Bakery on Fulton Street in Brooklyn is one of them. Switching to a new material would have roughly doubled the amount the place spends on containers, according to the manager there, who identifies himself as Ricky Ricky. Meanwhile, he says, “I have to sell food for the same price.
“I’m glad the judge lifted the ban,” Ricky adds, standing in front of a small mountain of plastic-foam containers behind the counter. “It’s nonsense.”