Legal Terrain

Massachusetts residents and businesses dispose of enough trash yearly to fill up about 31 Fenway Parks. Despite decades of government policies to reduce waste, we continue throwing away about six million tons of waste each year. Environmental groups advocate for “zero waste,” while pragmatists call for more and better methods of managing the inevitable detritus of society.

Having witnessed this continual dynamic over forty years, we have a unique perspective. The transformation of the waste-handling infrastructure in the state during this time includes:

• a system where nearly every town operated its own unlined and leaky landfill, to only a few remaining fully lined landfills;
• virtually no recycling to a robust recycling infrastructure;
• irresponsible disposal of hazardous waste to a strict command and control system;
• the use of the federal superfund program to fund the remediation of many of the worst polluting former landfills;
• conversion of the top-down state government program for cleaning up contaminated sites to a very successful privatized clean-up program;
• the new focus on previously unregulated contaminants such as PFAS;
• recognition of the disproportionate environmental and public health burden experienced by low-income and minority communities; and
• the legal and policy dominance of climate change and carbon reduction.

During this same time, the shipment of wastes out-of-state has grown exponentially while in-state disposal capacity dwindles. And most recently, we have witnessed a remarkable consolidation in the private sector, coupled with immense investment by private equity players.

Massachusetts’ official policy is to reduce the amount of waste generated by thirty percent by 2030, just six years from now, and by ninety percent by 2050. We are not on a trajectory to meet these goals. It is hard to imagine how we would individually achieve such reductions. Nevertheless, the state soldiers on with various programs, policies, and regulations.

What are the state’s main levers?  Primarily, they are waste bans, which make it illegal to dispose of certain types of waste, such as recyclables, tires, mattresses, and textiles. However, environmental not-for-profit advocacy groups are quick to point out that waste-ban materials continue to comprise a significant percentage of disposed materials. The state has responded by increasing MassDEP solid waste staff by eight positions and made it clear that it will do more enforcement.

A second lever is the state’s decades-old ban on new municipal solid waste combustion facilities. Although the state has for several years invited proposals for advanced waste management technologies, such as pyrolysis or gasification, to date, nobody has sought to permit such a facility for solid waste, indicative of how the industry perceives the actual receptiveness of such technologies.

Even though the state no longer has a moratorium on the development of additional landfill capacity, the available capacity for waste disposal in landfills has dropped and the state expects it to continue to drop dramatically. With fewer places to dispose of waste in-state, the Commonwealth increasingly relies upon disposal of its wastes out-of-state in places like New Hampshire, New York, Ohio, and further afield as far as South Carolina and Alabama.  While MassDEP officials are “not happy” with this situation and recognize the vulnerability and potential environmental justice implications of exporting our wastes, there is currently no proposed solution other than to stay the course on waste reduction.

Many industry insiders say, “we cannot recycle our way out of this problem.”  However, we have seen encouraging signs in recent large investments in Massachusetts recycling facilities and stabilization of the market for recycled commodities. Regardless, even MassDEP admits that recycling alone cannot bridge the gap between where we are and its ambitious goals.

Here are some outtakes from the State’s 2030 Solid Waste Master Plan: Working Together Toward Zero Waste that illuminate the state’s ambitious thinking:

• Reducing and phasing out the use of single-use plastic products and packaging will help contribute to this goal.
• Systematic changes in how we produce, distribute, sell, and use products and services as a society.
• Requiring any reusable, recyclable, or compostable material to be diverted from disposal at a very high rate while eliminating the use of products that are not reusable, recyclable, or compostable.
• Advance [at the legislature] extended producer responsibility (EPR) systems for paint, mattresses, electronics, and other products and packaging.

While MassDEP can implement additional waste bans and enforce mandated recycling by regulation, and the governor can issue executive orders such as EO 619 banning state executive agencies from purchasing single-use plastic bottles, only the legislature can adopt extended producer responsibility and the other ideas floated by MassDEP to reduce waste. Given its many other priorities around energy generation, transmission, carbon reduction, housing, and mitigation of climate change, it remains to be seen if the legislature has the mandate to also take on legislation that would result in “systematic changes in how we produce, distribute, sell and use products and services as a society.”  Meanwhile, we will continue to keep you informed as the state continues to develop and implement policy in this important area of our legal practice.