Customers shouldn’t be responsible for e-waste — producers should be

Reminiscent of the broom scene from Disney’s The Sorcerer’s Apprentice, electronic waste, or e-waste, continues to grow into never-ending mountains of toxic waste. 

According to the Global E-waste Monitor report released last week, 2019 set the record for the most e-waste ever generated worldwide. And the most wasted waste ever generated too because there is gold in that mountain of e-waste — and copper, and iron and other minerals worth $57 billion from last year alone. There’s also 50 tons of mercury and other toxins seeping into the environment impairing the health, brains and cognitive development of future generations.

In the U.S., we are chewing through e-waste at an ever-increasing speed as our appetite and need for electronic goods increases. Planned obsolescence by companies that have no incentive to make products last longer decreases the length of time we hang on to our gadgets before we toss them away for the next new, battery-powered or pluggable thing. Our system of disposal has been to dump our e-waste onto any country willing to take it — usually developing countries desperate for revenue. The often crude methods used for extracting precious metals from the waste causes enormous environmental damage. The resultant harm doesn’t stay abroad, however, it returns to the U.S. in produce like rice with heavy metals due to soil contamination, which we then consume. National security is yet another concern as confidential data from disc-drives end up in e-waste in foreign countries and counterfeit electronic parts are introduced into our defense systems. Over a two-year period more than 1 million counterfeit electronic components were discovered in critical U.S. defense systems including a large number of military aircraft, thermal weapons sights and mission computers for the THAAD missile.

The prevailing international legal regime with regard to e-waste is the 1989 Basel Convention on the Transboundary Movement of Hazardous Waste. The United States is one of only two signatories not to have ratified it — primarily because Congress has been unable to pass legislation that would amend the 1976 Resource Conservation and Recovery Act to implement the convention. This means that the U.S. government does not have the authority to stop exports of hazardous wastes. As a member of the OECD, the U.S. is obligated to abide by waste management requirements with other OECD countries but that doesn’t prevent unrestricted trade with non-OECD countries — until recently. An attempt to ban all OECD to non-OECD trade in hazardous waste, known as the “Basel Ban Amendment,” came into force in December 2019.  In sum, we have no federal legislation on e-waste and no plan on how to deal with it as increasing numbers of countries, including China, refuse to accept it.

A comprehensive, nationwide plan for “urban mining” would address this problem by rethinking our discarded electronic goods as an “e-resource” rather than as e-waste. It would allow us to tap into billions of dollars’ worth of gold, precious metals and rare-earth elements (REEs) that we are literally throwing away. To make recycling feasible a comprehensive recycling plan needs to be mandated. This cannot be done without government leadership directing us away from a linear “buy and toss” economy to a circular economy where products are repaired, reused, remanufactured and, finally, recycled. Legislation is necessary in order to co-opt manufacturers as part of the solution by requiring extended producer responsibility to hold manufacturers responsible for the collection and recycling of their electronics. 

Putting the onus on the customer to dispose of their appliance in an environmentally friendly way is flawed because only about half of the states and Washington, D.C., have any e-waste recycling legislation and even the best-intentioned consumer is challenged to know how or where to dispose of their electronic goods even when there are state requirements. Holding the consumer responsible for e-waste disposal is also flawed because it puts the burden on the party least able to control efficiencies. Unless the producer is responsible for the product from cradle to grave, the product will be designed so that it is manufactured at the lowest cost and with the greatest incentive for turnover. This inevitably means that the product cannot be easily repaired or disassembled — as anyone who has tried to repair their Nespresso maker with its proprietary screws will know.

The price for requiring manufacturers to take responsibility for the lifecycle of their electronic products will be high but that cost is dwarfed by the incalculable price we are currently paying for our health, security and the future of our children.

Colleen Graffy is a law professor at Pepperdine Caruso Law School and former deputy assistant Secretary of State.