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1
Chapter 27
WASTE MANAGEMENT
Natalie Jones* Geert van Calster
_______________________________________________________
Contents:
I) Overview
II) Macrostructures of waste management law
1. Introduction
2. Centralise versus delegated
3. Unified versus fragmented
4. Integrated versus specific
III) Principles of waste management law
1. Introduction
2. Definitional aspects
2.1. Definition of waste
2.2. Waste hierarchy
2.3. Waste streams and waste classifications
3. Management principles
3.1. Reduction of waste generation
3.2. Treatment near the source
3.3. Standards of waste treatment
3.4. Prohibitions and restrictions of movement
3.5. Extended producer responsibility
4. The move to circular economy approaches
IV) Concluding remarks
V) Select bibliography
________________________________________________________
I) OVERVIEW
Waste management is an ongoing challenge for legal systems. The amount of waste
generated globally continues to increase year on year, and new technologies create novel
waste problems. Municipal solid waste alone comes to around 2 billion tonnes per year,
and waste generation is growing rapidly.
1
In the face of this challenge, it is useful to explore
how laws and regulations are dealing with waste management – an area which can be both
technically and legally complex.
* [Bio]
[Bio]
1
UNEP and ISWA, ‘Global Waste Management Outlook’ (2015) 52.
2
In this chapter, we survey approaches to waste management law and draw
comparisons and contrasts between the various models. For the purposes of this chapter,
several salient axes of comparison have been chosen. These are of course not the only
possible criteria. There are numerous potential points at which comparisons can be
drawn—we could have looked at approaches to liability, duties, targets, enforcement,
offences, and monitoring, for instance—and we have merely attempted to choose the most
pertinent among these. The relevant points of interest will surely vary between authors and
practitioners, but the points presented here are broad and varied so as to sketch a useful
starting point. Nor is this chapter intended to be exhaustive of the waste management laws
of every jurisdiction; several jurisdictions are used to illustrate the various comparative
axes, including the European Union, the United States, China, Japan, Australia and New
Zealand.
The first part of this chapter considers what we have called the “macrostructures” of
waste management laws. The macrostructures concern the broad operation of the law:
where the waste management law is located in relation to other environmental laws;
whether it is chiefly located in one central waste statute or spread out over a number of
statutes; and how responsibility is divided between federal and state governments (in a
federal system) and national and local governments (in a unitary system).
The second part of this chapter turns to principles. We consider approaches taken to
definitions of “waste”, to the waste hierarchy, waste streams, and extended producer
responsibility. Finally, the emerging trend of circular economy approaches is explored.
Any introduction to comparative waste law would be incomplete without mentioning
the influence of international treaties and policy dialogues. The 1989 Basel Convention on
the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel
Convention) (controlling and limiting the movement of hazardous wastes), the 1972
London Dumping Convention (making dumping at sea illegal) and the 2001 Stockholm
Convention (requiring the phasing out of the production and consumption of persistent
organic pollutants) have all been formative for national waste laws. Agenda 21 was also
highly influential in recognising the importance of environmentally sound waste
management practices.
2
Its Chapter 4 urged governments to reduce waste generation by
encouraging recycling in industrial processes, reducing product packaging, and introducing
more environmentally friendly products. Among other things, it also called for establishing
frameworks for integrated life-cycle product management, including minimising waste,
maximising environmentally sound waste reuse and recycling, promoting environmentally
sound waste disposal and treatment, and extending waste service coverage.
3
In addition, the Organisation for Economic Co-operation and Development (OECD)
has been very influential in the waste management sector, particularly in inspiring the EU’s
waste management approach. The bottom line of EU waste law, as well as of OECD
2
[Agenda 21 footnote]
3
Chapter 21.4.
3
interest, is to combine a healthy business interest in the sector with the need to ensure
proper environmental protection. The OECD introduced the concepts of, among others,
extended producer responsibility and environmentally sound waste management.
4
II) MACROSTRUCTURES
1. Introduction
Comparing macrostructures is important because it involves looking at waste laws in their
wider context: the context of environmental law, the context of the jurisdiction’s legal
system, and the context of constitutional divisions of responsibility between federal or
national governments and state or local governments.
Here we highlight three ways in which the broad structure of waste laws can be
contrasted: centralised systems versus delegated systems (that is, the division of
responsibility between federal, state and local governments); unified systems versus
fragmented systems (that is, the location of waste law within the legal system and how
fragmented it is); and integrated versus specific systems (that is, whether waste laws are
integrated into general environmental laws or form a sui generis regime). Each of these
three axes of comparison constitutes a spectrum and is subject to interpretation.
Nevertheless, when seen together they are a useful starting point to gain an idea of the
macrostructures of waste laws.
2. Centralised versus delegated
One axis of comparison concerns the extent to which waste management is regulated
centrally. At one end of the spectrum, significant authority is delegated to state, regional
or local governments, although broad principles or baselines might be set by the federal or
national legislature and regulators. At the other end of the spectrum, waste management is
tightly controlled by federal or national governments.
An example of the latter is the US hazardous waste regime. Under the Resource
Conservation and Recovery Act 1976 (RCRA) and its implementing regulations,
5
the US
federal government extensively regulates the generation, treatment, storage and disposal of
hazardous wastes. Although the delegated states have substantial authority under RCRA to
enforce compliance with the regulations, the federal regulatory agencies ultimately set the
rules and have significant enforcement powers.
The European Union (EU) is another example of a highly centralised system, albeit
only at the level of identifying binding targets and procedural requirements. The Waste
4
1994 Phase 2 Framework Report; OECD, ‘Draft Recommendation of the Council on the Environmentally
Sound Management (ESM) of Waste’ C (2004) 100, May 18 2004.
5
42 USC 82 – Solid Waste Disposal, Subchapter III – Hazardous Waste; US Code of Federal Regulations,
Title 40 – Protection of Environment.
4
Framework Directive
6
(Framework Directive) and the other directives concerning waste
set baseline minimum standards, targets, and duties for Member States. Although the
Member States have considerable leeway in how they implement the directives—certainly
more discretion than US states have under the hazardous waste rules—they are bound by
their obligations at the EU level. Member States are obliged to, inter alia, develop national
waste prevention programmes (art 29), require permits for waste treatment (art 23), and
submit information to the European Commission (art 33).
In the US, solid waste rules (unlike those for hazardous waste) are primarily
implemented and enforced by states, rather than at the federal level. Although this is similar
to the EU system in that some definition and standard-setting occurs at the federal level
under the RCRA and its regulations,
7
it is even more decentralised. Similarly, in Canada
federal law only governs matters such as the export and import of hazardous waste, leaving
solid waste management largely to the control of individual provinces.
8
It appears that only
a few waste streams—typically hazardous wastes—are subject to centralisation across the
board. Most waste streams are centralised only at the level of standards and targets—and
sometimes not even then—leaving implementation and enforcement decentralized.
In many jurisdictions local government authorities retain some degree of
responsibility. In the EU, they typically retain responsibility for waste collection,
particularly for household waste. Local authorities play a more substantial role in New
Zealand, where they are to ‘promote effective and efficient waste management and
minimisation within [their] district’ particularly through the adoption of waste management
and minimisation plans.
9
3. Unified versus fragmented
A second macrostructural axis of comparison is along the lines of whether waste laws are
fragmented or unified: that is, whether waste law can be found in a number of different
statutes or whether it is broadly united under one umbrella or one statute.
An example of a fragmented approach can be found in New Zealand. Although the
title of the Waste Minimisation Act 2008 would seem to indicate that it is the principal
waste management statute, in reality the statutes which concern waste law also include the
Environment Act 1986, the Resource Management Act 1991, the Hazardous Substances
and New Organisms Act 1996, the Health Act 1956 and the Litter Act 1979.
10
This
‘incoherent analytical framework’ is also contributed to by a raft of rules, regulations,
6
Framework Directive EC/2008/98 on Waste, 19 November 2008.
7
42 USC 82 – Solid Waste Disposal, Subchapter IV – State or Regional Solid Waste Plans.
8
See e.g. Canadian Environmental Protection Act 1999, SC 1999, c 33, Part 7, Division 8; Export and
Import of Hazardous Waste and Hazardous Recyclable Material Regulations, SOR/2005-149; PCB Waste
Export Regulations, SOR/90-453.
9
Waste Minimisation Act 2008, ss 42 and 43.
10
Simon A Schofield, ‘Waste Management Law in New Zealand’ (2010) 14 New Zealand Journal of
Environmental Law 223, 223.
5
bylaws, accords, strategies and guidance documents ‘which all deal with discrete and
disparate topics.
11
In brief, this means that the New Zealand approach is ‘thwarted by
considerable fragmentation and still lacking a unifying cradle-to-grave approach to
waste’.
12
Particularly problematic effects of this were pointed out by the OECD, firstly with
respect to hazardous waste management where responsibility is currently unclearly divided
and there is no statutory definition of hazardous waste.
13
Secondly, the OECD noted that
the relevant legislation mostly deals with the end-of-pipe part of the life cycle, with
recycling, recovery and prevention dealt with voluntarily.
14
Moreover, the collection and
transportation of waste is only subject to territorial licensing contracts and bylaws, rather
than covered by national legislation or regulation.
15
The New Zealand approach can be contrasted with that taken in many other
jurisdictions. In both the EU and the US, waste laws are unified to a substantial degree. In
the EU, the Waste Framework Directive 2008 provides the central umbrella. Although
there are a plethora of other directives and instruments, they are generally well integrated.
More importantly, they all exclusively consider some aspect of waste law, rather than waste
law being spread around directives concerning other areas of law. Similarly, the US
approach is to regulate waste under the RCRA, a federal-level framework for both
hazardous and solid waste management. Although the RCRA largely delegates solid waste
management to the state level, it still constitutes a unifying framework, in contrasted to the
fragmented New Zealand model.
4. Integrated versus specific
A third macrostructural consideration is whether the waste management laws are relatively
stand-alone, or whether they are deeply integrated within general environmental laws in
the jurisdiction. Again, this is a spectrum.
At the integrated end of the spectrum is South Australia, where waste is regulated
under the statute which deals with environmental protection in general. The Environment
Protection Act 1993 (the 1993 Act) lists certain “prescribed activities of environmental
significance” which require licensing under the 1993 Act,
16
and waste management
activities are included here: incineration, sewage treatment works, waste or recycling
depots, activities producing wastes listed under Part B of Schedule 1, waste transport
businesses, and composting works.
17
But these activities are only some of the many
activities listed under the 1993 Act. The 1993 Act also includes “waste” in its definitions
11
ibid.
12
ibid. Also see P Birnie and A Boyle, International Law and the Environment (3rd ed 2009) 525.
13
OECD, OECD Environmental Performance Reviews: New Zealand (2007) 56. Schofield (n 10) 259.
14
OECD (ibid) 20.
15
Schofield (n 10) 258.
16
Environment Protection Act 1993, Schedule 1, ss36-47;
17
ibid, Schedule 1, Part A, Subparts 3 and 6(3).
6
of “pollutant” and “chemical substance”,
18
meaning that waste is a cross-cutting issue
throughout the statute: it recurs, for instance, in provisions concerning the unauthorised
entry of pollutants into surface or underground water in a water protection area (s 64A).
Despite being a general environmental statute, the 1993 Act does have one subpart
dedicated to a specific kind of waste: beverage containers,
19
which are subject to a specific
litter control and waste management take-back scheme. Nevertheless, the South Australian
waste laws are a good example of an integrated approach.
A similar, yet slightly different approach is seen in New South Wales. Here again,
activities related to waste are regulated alongside other activities affecting the environment
under the Protection of the Environment Operations Act 1997 (the 1997 Act), the principal
environmental protection legislation in New South Wales. Under Chapter 3 of the 1997
Act, environmental protection licences are required to authorise “scheduled activities”. The
schedule, here again, includes activities such as chemical storage, composting, energy
recovery, resource recovery, sewage treatment, waste disposal by application to land, waste
disposal by thermal treatment, waste processing, waste storage, mobile waste processing,
and the transportation of trackable waste.
20
The 1997 Act also sets offences and penalties
related to waste, including offences of: wilfully or negligently disposing of waste, or
causing any substance to leak, spill or escape, ‘in a manner that harms or is likely to harm
the environment’;
21
polluting land;
22
unlawful transporting or depositing of waste;
23
using
a place as a waste facility without lawful authority;
24
and littering.
25
However, in addition
to this general environmental legislation, New South Wales also has a specific waste
statute:
At the opposite end of the spectrum, the EU and the US both have relatively standalone
waste management laws. In the EU, the Waste Framework Directive is the umbrella under
which all other waste laws and regulations are placed. Although the Framework Directive
is certainly informed by general principles of EU environmental law
26
and necessarily
interacts with other legislation (as, necessarily, any functioning piece of legislation must),
and there are many other pieces of EU waste legislation, the EU approach clearly contrasts
with the approaches taken in the Australian states. In the US, too, the RCRA is a standalone
statute dealing with waste, rather than waste being merely one matter contained in a broader
environmental law.
18
ibid, s 3
19
ibid, Part 8, Division 2
20
Protection of the Environment Operations Act 1997, Schedule 1, provisions 9, 12, 16, 34, 36, 39, 40, 41,
42, 47 and 48.
21
ibid, ss 115 and 116.
22
ibid, s 142A.
23
ibid, s 143.
24
ibid, ss 144 and 145.
25
ibid, s 145.
26
See in particular art 4(2), which incorporates general environmental principles.
7
III) PRINCIPLES OF WASTE MANAGEMENT LAW
1. Introduction
Turning away from macrostructures, we now consider the principles which underpin waste
management laws. The first type of principles are definitional in nature: the definition of
waste, the waste hierarchy, and classifications of waste. Then, management principles are
considered, including principles of reduction of waste generation, treatment near the
source, standards of waste treatment, prohibitions and restrictions on the movement of
waste, and extended producer responsibility. Finally, the move towards circular economy
models is explored.
2. Definitional aspects
2.1. Definition of waste
Defining “waste” is a complex and fraught matter in many jurisdictions. Often, whether
or not a substance is waste determines whether or not it is subject to a mass of rules and
regulations which can involve significant costs for various actors. Needless to say, it is
impossible to go into great detail on the definition of waste in the various regimes, but a
few salient points can be selected for the sake of comparison.
Key to the definition of waste in many jurisdictions is the concept of discarding or
abandonment. For instance, the EU Waste Framework Directive defines waste as ‘any
substance or object which the owner discards or intends or is required to discard’.
27
The
US definition refers to “garbage”, “refuse”, and “other discarded material”, terms which
are not defined in the legislation.
28
A key point of contention in many jurisdictions is as to whether or not recyclable
materials, and materials subject to resource or energy recovery, are classified as waste. In
the US, if a material is recyclable it is not waste, because ‘to stigmatise recyclable
secondary materials as waste [would be] a catalyst for community opposition’.
29
New
South Wales takes precisely the opposite approach: the definition of waste explicitly
includes ‘any otherwise discarded, rejected, unwanted, surplus or abandoned substance
intended for sale or for recycling, processing, recovery or purification’.
30
27
Waste Framework Directive 2008, art 3(1).
28
42 USC 82, §6903(27).
29
J Smith, ‘The Challenges of Environmentally Sound and Efficient Regulation of Waste – The Need for
Enhanced International Understanding’ (1993) 5(1) JEL 91, 96
30
Protection of the Environment Operations Act 1997, Dictionary.
8
The EU approach is more nuanced. Following significant amounts of litigation in the ECJ
on the definition of waste,
31
the Framework Directive provided a new classification of
“by-product”, which excludes substances and objects resulting from production processes
from the definition of “waste”, and therefore the scope of the Directive, if their further
use is certain, without any further processing, if they are produced as an integral part of a
production process, and further use is lawful.
32
Another novel innovation in the Directive is the provision for waste to cease to be waste
upon undergoing recovery, including recycling, where certain conditions are fulfilled,
including: the common use of the substance or object, the existence of a market or
demand, the fulfilment of relevant technical requirements and applicable standards, and
that the use of the substance or object will not lead to overall adverse environmental or
human health impacts.
33
Subsequently, regulations have been adopted setting out the
criteria by which iron, steel, aluminium and copper scrap and glass cullet cease to be
waste.
34
Unfortunately, these new provisions have not been sufficient to remove the confusion
surrounding the definition of waste in Europe, and have been much criticised.
35
The South Australian Environmental Protection Act 1993, as amended by the
Environment Protection (Waste Reform) Amendment Act 2017, takes a similar approach.
Under s 4, waste is any discarded, dumped, rejected, abandoned, unwanted or surplus
matter, whether or not intended for sale or for purification or resource recovery by a
separate operation from that which produced the matter’ (emphasis added). Similarly to
the “end of waste” provisions in the EU Framework Directive, the 1993 Act introduces
the concept of “resource recovery” which involves reusing, recycling, or recovering
energy or other resources from waste. The Act provides for a process allowing the state
regulatory authority to declare that specified matter is an approved “recovered resource”,
meaning that it is no longer waste for the purposes of the Act while it is in the process of
recovery.
36
Another point of comparison is the inclusion or exclusion of liquid and gaseous material.
Some waste laws explicitly exclude liquids and gases: for instance, EU law excludes
‘gaseous effluents emitted into the atmosphere’ from the scope of the Framework
31
See e.g. Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Euro Tombesi [1997] ECR I-3561;
Case C-126/96 Inter-Environnement Wallonie v Regione Wallone [1997] ECR I-7411. See also David
Pocklington, The Law of Waste Management (2nd ed, Sweet & Maxwell 2011).
32
Waste Framework Directive 2008, art 5(1).
33
Waste Framework Directive 2008, art 6.
34
Regulation 333/2011, OJ [2012] L94; Regulation 1179/2012, OJ [2012] L337/31; Regulation 715/2013,
OJ [2013] L201/14.
35
See e.g. Geert van Calster, EU Waste Law (2nd ed, OUP 2015).
36
Environment Protection Act 1993, ss 4(2), 4A.
9
Directive, amongst other exclusions.
37
In the US, by contrast, the definition of “solid
waste” explicitly includes ‘liquid, semisolid, or contained gaseous material resulting from
industrial, commercial, mining, and agricultural operations’.
38
In New South Wales, too,
the definition of waste includes ‘any substance (whether solid, liquid or gaseous) that is
discharged, emitted or deposited in the environment in such volume, constituency or
manner as to cause an alteration in the environment’.
39
2.2. Waste hierarchy
A significant common thread in waste laws is the concept of waste hierarchy. In some form
or another, a waste hierarchy exists either explicitly or implicitly in the waste laws of many
jurisdictions.
A waste hierarchy is an ordering of waste management options which typically
prioritises prevention of waste, then reuse, recycling, other recovery (such as energy
recovery), and finally disposal. The waste hierarchy aims to generate as little waste as
possible, and to extract the maximum practical benefit of the waste that is still produced.
40
Options for prevention include product prohibitions, voluntary consumer behaviour
change, pricing (“pay-as-you-throw”) mechanisms, and extended producer
responsibility.
41
Although its potential regarding minimising environmental impacts and
resource use has been questioned by some,
42
it remains an influential philosophy and
ordering concept.
43
The waste hierarchy has been adopted in many jurisdictions. However, a difference
among jurisdictions is seen in how many steps the hierarchy contains. In some models, the
waste hierarchy contains just three stages. In New South Wales, for instance, the Waste
Avoidance and Recovery Act 2001 states that one objective of the legislation is:
44
to ensure that resource management options are considered against a hierarchy of
the following order:
(i) avoidance of unnecessary resource consumption,
37
Waste Framework Directive 2008, art 2. Evidently, these effluents are regulated via different parts of EU
environmental law.
38
42 USC 82, §6903(27).
39
Protection of the Environment Operations Act 1997, Dictionary.
40
Alexander Gillespie, Waste Policy: International Regulation, Comparative and Contextual Perspectives
(Edward Elgar 2015) 3.
41
ibid, 4.
42
S Van Ewijk and JA Stegemann, ‘Limitations of the waste hierarchy for achieving absolute reductions in
material throughput’ (2016) 132 Journal of Cleaner Production 122.
43
J Tjell, ‘Is the “Waste Hierarchy” Sustainable?’ (2005) 23 Waste Management and Research 173; J
Hultman, ‘The European Waste Hierarchy: From the Sociomateriality of Waste to a Politics of
Consumption’ (2012) 44 Environment and Planning A 2413.
44
Waste Avoidance and Recovery Act 2001, s 3(b).
10
(ii) resource recovery (including reuse, reprocessing, recycling and energy
recovery),
(iii) disposal.
Reuse, reprocessing, recycling and energy recovery are here placed at the same level
of priority. Contrast this with the ordering found in the European Framework Directive:
45
prevention, ‘preparing for reuse’, ‘recycling’, other recovery e.g. energy recovery, and
disposal.
46
The Japanese laws contain the same ordering.
47
In other jurisdictions, such as New Zealand and South Australia the waste hierarchy
contains a further step: treatment, which is prioritised after recovery and before disposal.
48
The South Australian law contains a further step still, by dividing prevention into two
stages: ‘avoidance of the production of waste’ and ‘minimisation of the production of
waste’.
49
This division recognises that it is preferable that waste not be produced in the first
place, but if waste production is inevitable, then it should be minimised.
In Europe, the Framework Directive emphasises that the waste hierarchy is flexible,
and can be departed from for the purposes of reaching “the best overall environmental
outcome” rather than being rigid or prescriptive:
50
…Member States shall take measures to encourage the options that deliver the
best overall environmental outcome. This may require specific waste streams
departing from the hierarchy where this is justified by life-cycle thinking on the
overall impacts of the generation and management of such waste.
The United States is an outlier here, in that the waste hierarchy is not explicitly
included in key waste legislation. Rather, it is outlined by the Environmental Protection
Agency in guidance documents. The RCRA does not mention the hierarchy, merely
emphasizing prevention:
51
The Congress hereby declares it to be the national policy of the United States that,
wherever feasible, the generation of hazardous waste is to be reduced or
eliminated as expeditiously as possible. Waste that is nevertheless generated
45
Waste Framework Directive, art 4(1). See also the definitions of these terms in arts 3(13), 3(15), 3(16),
3(17) and 3(19).
46
Disposal is defined negatively in art 3(19): ‘any operation which is not recovery even where the
operation has as a secondary consequence the reclamation of substances or energy. Annex I sets out a non-
exhaustive list of disposal operations’.
47
2000 Fundamental Law for Establishing a Sound Material-Cycle Society – No. 110 of 2000
48
South Australia: Environment Protection Act 1993, s 4B(f); New Zealand: Waste Minimisation Act
2008, s 44. Treatment is defined as ‘subjecting waste to any physical, biological, or chemical process to
change its volume or character so that it may be disposed of with no or reduced adverse effect on the
environment’: s 5(1). See Schofield (n 10) 255.
49
Environment Protection Act 1993, s4B(a) and (b).
50
Waste Framework Directive, art 4(2).
51
42 USC 82, § 6902(b). Also see S Van Ewijk and JA Stegemann, Limitations of the waste hierarchy for
achieving absolute reductions in material throughput’ (2016) 132 Journal of Cleaner Production 122.
11
should be treated, stored, or disposed of so as to minimize the present and future
threat to human health and the environment.
The EPA guidance places prevention and reuse at the same level, then recycling and
composting, then energy recovery, then treatment and disposal.
52
As we have discussed here, and as Gillespie notes, the waste hierarchy is ‘far from
absolute’, and is implemented differently in different jurisdictions.
53
It is a dynamic
concept: it allows for interpretations of the mix of waste management options that should
be adopted given a country’s environmental and economic circumstances.
54
2.3. Waste streams and waste classifications
Another point of comparison is the treatment of different waste streams. In one model, a
fundamental distinction is made between hazardous and solid wastes. This is clearly seen
in the US RCRA, where the rules for hazardous and solid wastes are separated into two
different legislative subchapters.
55
As already discussed, hazardous wastes are extensively
regulated at the federal level under the RCRA, whereas the management of other solid
wastes is largely left to states.
Contrast this with the EU Framework Directive, which contains rules prima facie
applicable to all types of waste, and subjects hazardous waste to additional controls.
Member States have general obligations which apply to all kinds of waste, including: to
take necessary measures to ensure that waste undergoes recovery operations;
56
to take
measures to promote reuse and recycling, including measures to achieve certain targets;
57
to ensure that waste disposal is conducted in accordance with the protection of human
health and the environment;
58
and to take measures to ensure that waste management is
carried out without endangering human health or harming the environment.
59
Certain
articles of the Waste Framework Directive impose additional obligations concerning
hazardous wastes, including provisions on control of hazardous waste, ban on mixing, and
labelling.
60
In addition to the fundamental distinction between hazardous wastes drawn (or not
drawn), it is common for waste laws to include specific regimes for certain more specific
waste streams. Packaging waste is one such waste stream. An EU Directive specifically
52
See e.g. EPA, ‘Waste Management Hierarchy and Homeland Security Incidents’ (16 September 2016),
www.epa.gov/homeland-security-waste/waste-management-hierarchy-and-homeland-security-incidents/,
accessed 13 December 2017.
53
Gillespie (n 40) 74-75.
54
Hultman 2414.
55
Subchapter III deals with hazardous waste, while Subchapter IV deals with solid waste.
56
Waste Framework Directive, Article 10.
57
ibid, Article 11.
58
ibid, Article 12.
59
ibid, Article 13. Also see obligations in Articles 14, 15 and 16.
60
ibid, Articles 17, 18, 19 and 20.
12
regulating packaging and packaging waste was introduced in 1994.
61
Other jurisdictions
that have introduced specific regimes for packaging include Japan
62
and South Australia.
63
Other waste streams that are commonly subject to special regulation include end-of-
life vehicles,
64
batteries,
65
electrical and electronic equipment, home appliances,
66
food
waste,
67
construction waste,
68
mining waste
69
and PCBs.
70
3. Management principles
3.1. Reduction of waste generation
The principle of reduction of waste generation (otherwise known as ‘waste prevention’)
can be found in many jurisdictions. Here, there are more commonalities than differences.
Reduction is distinct from the principles regarding waste management: management
occurs after the waste is generated, but reduction is about less waste being generated. In
New Zealand, for instance, the purpose of the Waste Minimisation Act is ‘to encourage
waste minimisation and a decrease in waste disposal’, in order to protect the environment
from harm and provide environmental, social, economic, and cultural benefits.
71
In this
context, “waste minimisation” is defined as the reduction of waste, and the reuse,
recycling, and recovery of waste and diverted material.
72
In the EU, the idea of waste reduction overlaps closely with the prevention principle.
Prevention is at the top of the waste hierarchy,
73
and Member States are obliged to have
waste prevention programmes, with the aim to ‘break the link between economic growth
and the environmental impacts associated with the generation of waste’.
74
Prevention is
defined as measures taken, before a substance, material or product becomes waste, that
reduce the quantity of waste, its adverse impacts, or its content of harmful substances.
75
61
Directive 94/62 of 20 December 1994 on packaging and packaging waste [1994] OJ L365/10.
62
Law for Promotion of Sorted Collection and Recycling of Containers and Packaging – No. 112 of 1995.
63
Environment Protection Act 1993, Part 8 Division 2 – Beverage containers.
64
Directive 2000/53 [2000] OJ L269/34. Japan: Law Concerning Recycling Measures of End-of-life
Vehicles – No. 87 of 2002.
65
Directive 2006/66, [2006] OJ L266/1.
66
Japan: Law for Recycling of Specified Kinds of Home Appliances – No. 97 of 1998.
67
Japan: Law Concerning the Promotion of Recycling Food Cyclical Resources – No. 116 of 2000.
68
Japan: Law Concerning Recycling of Materials from Construction Work – No. 104 of 2000.
69
EU Directive 2006/21 on the Management of Waste from Extractive Industries and amending Directive
2004/35, [2006] OJ L102.
70
Directive 96/59 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT)
[1996] OJ L243/31, amended in 2009: [2009] OJ L188/25.
71
S 3.
72
S 5(1).
73
Art 4(1)(a).
74
Art 29. Also see art 30.
75
Art 3(12).
13
The EU, though, has found it difficult to agree binding and enforceable waste prevention
targets.
Waste reduction, termed “minimization”, is also at the heart of the RCRA provisions on
hazardous waste. Under the RCRA, ‘the generation of hazardous waste is to be reduced
or eliminated as expeditiously as possible’, while ‘[w]aste that is nevertheless generated
should be treated, stored, or disposed of so as to minimize the present and future threat to
human health and the environment’.
76
The distinction between waste reduction and waste
management can be clearly seen here.
Measures adopted to further the broad objective of waste reduction vary in nature.
Targets are one approach – see those adopted by the EU.
77
A waste disposal levy is
another, such as that favoured by New Zealand.
78
In the EU, Annex IV of the Waste
Framework Directive lists examples of waste prevention measures, including awareness
campaigns, product design measures, economic incentives, and labelling. These measures
have been criticised for their non-binding and ‘vague and general’ character, as opposed
to an ‘active, integrated product policy’.
79
3.2. Treatment near the source
Some systems incorporate the proximity principle, according to which waste should be
treated or disposed of near its source. The EU exemplifies this approach. Article 16 of the
Waste Framework Directive sets out the principles of self-sufficiency and proximity.
Member States have a duty to take appropriate measures to establish an ‘integrated and
adequate’ network of disposal and recovery installations, designed to enable the
European Community as a whole and Member States individually to become self-
sufficient in waste disposal and recovery, and to enable waste to be disposed or recovered
in ‘one of the nearest appropriate installations, by means of the most appropriate methods
and technologies, in order to ensure a high level of protection for the environment and
public health’.
The Australian state of New South Wales incorporated the proximity principle in a
different way. The Protection of the Environment (Waste) Regulation 2014 included an
offence of transporting any waste by road more than 150 kilometres from where it was
generated, with several defences including the transportation of waste for ‘lawful and
76
42 USC 82, §6902(b).
77
European Commission, ‘Closing the loop: an EU action plan for the circular economy’, COM(2016) 614.
78
Waste Minimisation Act 2008, Part 3.
79
Ludwig Krämer, EU Environmental Law (8th ed, Sweet & Maxwell 2016) 377.
14
genuine’ recycling, recovery or re-use.
80
However, following significant difficulties in
policing this law,
81
a proposal to abolish the proximity principle has been introduced.
82
Other jurisdictions appear not to incorporate the proximity principle in waste
management law. Among these are the US, New Zealand, and other Australian states.
3.3. Standards of waste treatment
Standards of waste treatment vary among jurisdictions. They are often complex,
involving large amounts of regulation. It is common for emissions standards to exist,
regulating the maximum levels of emissions of various pollutants that may be released in
the process of waste management and disposal. In the US, these standards are set by the
federal government, although states may set more stringent requirements.
83
In the EU, the
concept of “best available techniques” is central to setting emission limit values.
84
Reference documents on best available techniques, known as BREFs, are the main source
of reference for Member States on the applicable standards.
85
Other types of standards
which often exist relate to design and technology standards, location restrictions,
monitoring, and operating criteria.
86
3.4. Prohibitions and restrictions of movement
Common to many systems is some form of restriction on the movement of waste,
particularly hazardous waste. Trade in waste, particularly from developed countries to
developing countries, became an issue in the 1980s.
87
Following the 1989 adoption of the
Convention on the Control of Transboundary Movements of Hazardous Wastes and Their
80
Clause 71.
81
Caro Meldrum-Hannah, Deb Richards, Anne Davies, ‘Organised network shifting waste to ‘dump capital
of Australia’ to avoid tariffs’ (ABC, 5 September 2017), http://www.abc.net.au/news/2017-08-07/four-
corners-australias-organised-waste-trade/8782866.
82
Protection of the Environment Operations Legislation Amendment (Waste) Regulation 2017, public
consultation draft; NSW EPA, ‘Reforms to the construction waste recycling sector: Explanatory paper’
(2017).
83
See e.g. 40 CFR 1, Subchapter C, Part 60 – Standards of Performance for New Stationary Sources; 40
CFR 1, Subchapter C, Part 63, Subpart AAAA – National Emission Standards for Hazardous Air
Pollutants: Municipal Solid Waste Landfills.
84
Arts 14(3) and 15.
85
See e.g. Waste Incineration BREF, 2006; Waste Treatment Industries BREF, 2006.
86
In the US, see e.g. 40 CFR 1, Subchapter 1, Part 264 – Standards for Owners and Operators of Hazardous
Waste Treatment, Storage and Disposal Facilities; 40 CFR 1, Subchapter 1, Part 258 – Criteria for
Municipal Solid Waste Landfills; 40 CFR 1, Subchapter 1, Part 66 – Standards for the Management of
Specific Hazardous Wastes and Hazardous Waste Management Facilities. In the EU, see e.g. Council
Directive 1999/31/EC of April 26, 1999 on the landfill of waste, [1999] OJ 1182.1; Council Decision
2003/33/EC of December 19, 2002 establishing criteria and procedures for the acceptance of waste at
landfills pursuant to Art. 16 and Annex II to Directive 1999/31/EC, [2003] OJ L11/27.
87
Gillespie (n 40) 19.
15
Disposal (Basel Convention),
88
many states introduced export and import restrictions.
186 states are parties to the Basel Convention. In addition, there are regional conventions
which prohibit, rather than merely restrict, hazardous waste exports and imports. Further,
some systems have controls on the internal movement of waste, not merely movement
across borders.
Prior to the Basel Convention’s adoption, early impetus was provided by the United
States, the European Union and the OECD. In the US, the Resource Conservation and
Recovery Act was amended in 1984 to provide that exports of hazardous waste were
prohibited, unless the US provided notification in advance of shipment to the receiving
country, who in turn consented to accept the hazardous waste.
89
The OECD adopted this
“notification and consent” approach to govern trade in hazardous waste between OECD
countries, and later extended it to cover hazardous waste trade between OECD and non-
OECD countries.
90
It also prohibited the movement of hazardous waste to a non-OECD
country unless the waste was ‘directed to an adequate disposal facility in that country’.
Similarly, the European Union adopted the notification and consent approach in 1984.
91
The Basel Convention takes the approach of regulating, rather than prohibiting, the
movement of hazardous waste across borders.
92
Following the approach adopted by the
US, EU and OECD, there must be full and informed consent by the importing country to
each shipment of hazardous waste.
93
The exporting and importing countries must take all
appropriate measures to ensure the waste is disposed of in an environmentally sound
manner.
94
In addition, there are requirements around packing, labelling, tracking,
monitoring and insurance coverage.
95
If the terms of the consent are not followed, the
waste must be re-imported by the exporting country.
96
The implementation of the Basel
Convention can be seen in many domestic systems. In the EU, for instance, articles 17 to
20 of the Waste Framework Directive require Member States to take action to ensure
traceability of hazardous waste from production to final destination.
97
The Basel
Convention approach, in practice, has led to more hazardous waste being shipped from
88
1673 UNTS 126, adopted 22 March 1989, entered into force 5 May 1992.
89
S 262(52).
90
OECD, Decision-Recommendation C(83)180/FINAL on Transfrontier Movements of Hazardous Wastes
(1 February 1984); Resolution C(85)100 on International Co-Operation Concerning Transfrontier
Movements of Hazardous Waste (20 June 1985) and Decision-Recommendation C(86)64/FINAL on
Exports of Hazardous Wastes from the OECD Area (5 June 1986).
91
EC Directive 84631/EC, 20 December 1984 on Transfrontier Shipment of Hazardous Waste.
92
Except the general prohibition on the export of hazardous waste to Antarctica: art 4(6).
93
Art 4(1).
94
Arts 4(2)(f), 4(8).
95
See e.g. art 4(7)(b).
96
Arts 4(3) and 9(1) to 9(4).
97
Also see Regulation 1013/2006.
16
developing countries to developed countries than vice versa – a reversal of the previous
trend.
98
Some jurisdictions go further than the Basel Convention, prohibiting trade in hazardous
waste altogether. In Africa and the Pacific, the Bamako Convention and the Waigani
Convention respectively prohibit the importation of any hazardous waste for disposal.
99
In general, movements of waste within states tend to be less regulated. For example, in
the EU, shipments within a member state are only required to be subject to a monitoring
system
100
although some of the Union’s federal Member States (including Belgium and
Germany) have provisions restricting the intra-Member State movement of waste.
3.5. Extended producer responsibility
Approaches taken to extended producer responsibility are perhaps one of the most
interesting points of comparison. Founded upon the polluter-pays principle, which itself is
incorporated into waste management laws in many jurisdictions,
101
extended producer
responsibility is the concept of assigning long-term environmental responsibility for
products to producers. It is an attempt to internalise the waste externalities of the product
and provide market incentives to convert the linear “cradle-to-grave” production and
distribution chain into a “cradle-to-cradle” system—an ‘ecological extension of product
liability law’.
102
Extended producer responsibility regulation is focused on how products
are designed, marketed, used, and disposed of—their full life-cycle impacts.
103
Extended producer responsibility has been implemented mainly through take-back
schemes, which require manufacturers to take back and recycle their products after
consumer use or pay a fee to an organisation that will collect and recycle the products.
Other forms of extended producer responsibility include deposit/refund schemes, labelling
schemes, and product design schemes.
98
J Baggs, ‘International Trade in Hazardous Waste’ (2009) 17 Review of International Economics 1
99
Bamako Convention on the ban on the Import into Africa and the Control of Transboundary Movement
and Management of Hazardous Wastes within Africa, 30 ILM 773, signed 30 January 1991, entered into
force 22 April 1998. Convention to ban the importation into Forum island countries of hazardous and
radioactive wastes and to control the transboundary movement and management of hazardous wastes
within the South Pacific Region (Waigani Convention), 2161 UNTS 91, signed 16 September 1995, entered
into force 21 October 2001.
100
Regulation 1013/2006, arts 1(5) and 33.
101
South Australia Environment Protection Act 1993, s 5C; Waste Framework Directive, art 14;
102
Sachs 53. Though Sachs thinks these claims are overstated: 54-55.
103
A Austen, ‘Where will all the waste go? Utilising extended producer responsibility framework laws’
(2013) 6 Golden Gate University Environmental Law Journal 178; R Lifset, ‘Extended Producer
Responsibility’ (2013) 17 Journal of Industrial Ecology’ 162; L Gui, ‘Implementing extended producer
responsibility’ (2013) 17 Journal of Industrial Ecology’ 167.
17
The 1991 German Packaging Ordinance was a pioneer of extended producer
responsibility,
104
regulating the materials used for packaging and providing for producer
responsibility for collection and recycling of discarded packaging. From Germany,
extended producer responsibility quickly spread. An OECD study in 2014 found that over
400 schemes were in place across the OECD and developing countries.
105
A fundamental distinction can be drawn between systems which provide for extended
producer responsibility and those which do not. A leading example of the former is the EU;
the latter, the US.
In the EU, Article 8 of the Framework Directive enshrines extended producer
responsibility. It provides that Member States may adopt extended producer responsibility
measures, which may include take-back measures, labelling, and product design schemes,
although it notes that Member States must respect the need to ensure the proper functioning
of the internal market.
The EU has also adopted extended producer responsibility directives regarding certain
waste streams. The 1994 Packaging and Packaging Waste Directive, modelled after the
German Packaging Ordinance, requires Member States to adopt appropriate measures to
prevent the production of packaging, and to develop reuse and recycling systems to reduce
packaging waste.
106
Similarly, the Waste Electrical and Electronic Equipment Directive
shifts responsibility for collecting, reusing and recycling electronic waste to
manufacturers;
107
and the Restriction of the Use of Certain Hazardous Substances in
Electrical and Electronic Equipment Directive imposes restrictions on using hazardous
substances in electrical products. Relevant directives also exist for end-of-life vehicles
108
and batteries and accumulators.
109
These directives have served as models for other jurisdictions to follow. Japan has
adopted extended producer responsibility schemes for packaging, end-of-life vehicles,
electrical equipment and home appliances,
110
though its electrical equipment scheme is
even more stringent than the corresponding scheme in the EU as it includes an enforced
consumer responsibility for returning products for recycling.
111
Australia has a national
104
‘Regulation on the Avoidance of Packaging Waste’ (1992) 31 ILM 1135. Amy Halper, Germany &
Solid Waste Disposal System: Shifting the Responsibility, 14 GEO. INT'L ENVTL. L. REv. 135, 136
(2001).
105
OECD (2014), ‘Global Forum on the Environment: Promoting Sustainable Materials Management
Through Extended Producer Responsibility’.
106
Directive 94/62/EC (20 December 1994) on Packaging and Packaging Waste [1994] OJ L365/10.
107
Directive 2012/19/EU (4 July 2012) on Waste Electrical and Electronic Equipment.
108
Directive 2000/53/EC, 18 September 2000, on End-of-Life Vehicles.
109
Directive 2006/66/EC (6 September 2006) on Batteries and Accumulators.
110
Law for Promotion of Sorted Collection and Recycling of Containers and Packaging – No. 112 of 1995;
Law Concerning Recycling Measures of End-of-life Vehicles – No. 87 of 2002; Law for Recycling of
Specified Kinds of Home Appliances – No. 97 of 1998.
111
P Ghisellini, C Cialani and S Ulgiati, ‘A review on circular economy: the expected transition to a
balanced interplay of environmental and economic systems’ (2016) 114 Journal of Cleaner Production 11,
16.
18
television and computer recycling scheme whereby importers and manufacturers must be
part of collective take-back arrangements,
112
and New South Wales and South Australia
both have legislated for take-back schemes for beverage containers.
113
Under the US approach, by contrast, there is no federal mandate for extended producer
responsibility schemes. Although the US federal laws are aggressive in regulating
hazardous wastes, and may for instance qualify many e-wastes as hazardous waste to be
disposed of in sanitary landfill or by incineration instead of recycling, they tend to focus
on the waste disposal process rather than the production process.
114
It is unlikely that this
situation will change, as the RCRA does not give federal regulatory authorities the mandate
that would be required.
115
According to Sachs, this divergence in approach between the EU and US is the result
of different policy focuses. In the US, environmental law focuses on mitigating
externalities from production processes, but has a ‘glaring gap’ relating to externalities
from products themselves; the EU has focused more on product externalities as well as
production externalities.
116
Despite the deficit at the US federal level, some US states have take-back schemes for
certain electronic waste, pharmaceuticals, batteries, and containers. In addition, many
businesses and municipalities have voluntary take-back programmes.
117
The development
of EPR schemes has also been seen in Canadian provinces, despite the similar lack of
federal regulation.
118
An approach midway between extended producer responsibility and no extended
producer responsibility is “shared responsibility”: the idea that manufacturers and
importers, the community, and government share the responsibility for waste management.
Such an approach can be found in the New Zealand Waste Minimisation Act 2008,
119
the
112
Australian Government, ‘National Waste Policy: Less Waste, More Resources’ (November 2009).
113
New South Wales, Waste Avoidance and Recovery Act 2001, Part 5; South Australia, Environment
Protection Act 1993, Part 8 Division 2.
114
Hsing-Hao Wu, ‘Legal Development in Sustainable Solid Waste Management Law and Policy in
Taiwan: Lessons from Comparative Analysis Between EU and U.S.’ (2011) 6 National Taiwan University
Law Review 461, 472-473.
115
ibid 485.
116
Noah Sachs, ‘Planning the Funeral at the Birth: Extended Producer Responsibility in the European
Union and the United States’ (2006) 30 Harvard Environmental Law Review 51, 51, 55. Also see M Short,
‘Taking Back the Trash: Comparing European Extended Producer Responsibility to U.S. Environmental
Policy and Attitudes’ (2004) 37 Vanderbilt J Transnational L 1217.
117
Product Stewardship Institute, ‘U.S. State EPR Laws’,
http://www.productstewardship.us/?State_EPR_Laws_Map, accessed 30 January 2018.
118
Jamie Benidickson, Environmental Law (4th ed, Irwin Law 2013) 341; Canadian Council of Ministers of
the Environment, ‘Canada-Wide Action Plan for Extended Producer Responsibility’ (29 October 2009).
119
Section 8(1): the legislation encourages ‘the people and organisations involved in the life of a product to
share responsibility for (a) ensuring there is effective reduction, reuse, recycling or recovery of the product;
and (b) managing any environmental harm arising from the product when it becomes waste’.
19
Brazilian National Policy for Solid Waste,
120
and the New South Wales Waste Avoidance
and Recovery Act 2001.
121
In some jurisdictions, there is legislation providing for the possibility of extended
producer responsibility schemes, but no such scheme has yet been implemented. In New
Zealand, for instance, Part 2 of the Waste Minimisation Act 2008 gives the Minister for
the Environment authority to develop ‘product stewardship’ schemes, following public
consultation, which may include take-back schemes, deposit/refund schemes, labelling
schemes, and product design schemes.
122
However, in practice, New Zealand ‘does not
invoke extended producer responsibility schemes, preferring to leave most recycling to the
market, not the original producers of the waste’.
123
Similarly, in New South Wales the
Waste Avoidance and Recovery Act 2001 provides for the possibility of extended producer
responsibility schemes to be implemented via regulation, but no such regulations have so
far been promulgated.
124
4. The move to circular economy approaches
An increasing trend in the last decade has been the move towards circular economy models.
Although the concept of “circular economy” is itself a ‘narrative frame’ subject to
interpretation,
125
here it is generally understood to mean the closing of materials-cycle
loops to turn waste into a resource, including by using outputs from one manufacturing
process as inputs for another, which increases resource efficiency and reduces and waste
generation.
126
The shift towards a circular economy model has been particularly notable in the EU.
A series of high profile policy documents are relevant here. These include the 7th
Environmental Action Plan;
127
the Europe 2020 Strategy;
128
the Roadmap to a Resource
Efficient Europe;
129
and most recently, the June 2014 Communication ‘Towards a circular
economy: A zero waste programme for Europe’ (which additionally has led to proposed
120
Federal Law No 12.305, articles 3 and 6; see Heyd Fernandes Más, Transplanting EU Waste Law: The
European Waste Electrical and Electronic Equipment Directives as a source of inspiration to Brazilian
Law and Policy (PhD thesis, University of Groningen, 14 November 2016).
121
Section 3(e): object of legislation ‘to ensure that industry shares with the community the responsibility
for reducing and dealing with waste’.
122
Waste Minimisation Act 2008, s 23.
123
Gillespie (n 40) 2. Also see Schofield (n 10) 231; H Wagener, "The Waste Minimisation Act 2008 and
the Ability of Territorial Authorities to Manage Solid Waste Discharges" (2009) 13 NZJEL 295, 362.
124
Waste Avoidance and Recovery Act 2001, ss 15-17.
125
W McDowall, Y Geng, B Huang, et al, ‘Circular economy policies in China and Europe’ (2017) 21 J
Ind Ecol 651, 655.
126
John A Mathews and Hao Tan, ‘Lessons from China’ (2016) 531 Nature 440, 441.
127
EP and Council Decision 1386/2013, OJ [2013] L354/171.
128
Communication from the Commission “Europe 2020: a strategy for smart, sustainable and inclusive
growth”, COM(2010) 2020.
129
Communication from the Commission on a “Roadmap to a Resource Efficient Europe” COM (2011)
571.
20
amendments to a variety of individual waste directives).
130
A common thread throughout
these documents is recognizing waste as a commodity and as an important source of
energy. In line with the Framework Directive, these instruments aim at creating a more
competitive EU market for recycling and recovery, using waste as a resource to relieve the
pressure on finite raw materials. Waste prevention, too, ranks high in the policy priorities.
This is an area where the EC is having difficulties with the introduction of binding targets.
The EU adopted a new circular economy package at the end of 2015.
131
The key
elements of this package include: a common EU target for recycling 65 per cent of
municipal waste by 2030; a common EU target for recycling 75 per cent of packaging
waste by 2030; a binding landfill target to reduce landfill to a maximum of 10 per cent of
municipal waste by 2030; a ban on landfilling of separately collected waste; the promotion
of economic instruments to discourage landfilling; simplified and improved definitions and
harmonised calculation methods for recycling rates throughout the EU; concrete measures
to promote reuse and stimulate industrial symbiosis, turning one industry’s by-product into
another’s raw material; and economic incentives for producers to put greener products on
the market and support recovery and recycling schemes.
The package implies the amendment of a wide range of the secondary legislation, in
particular the Framework Directive; the packaging waste and landfill Directives; and the
WEEE Directive. The Netherlands presidency of the EU in the first half of 2016 worked
hard to make progress on the detailed discussion, and at the time of writing a provisional
agreement has been reached between Council and EP on the final texts of all parts of the
package.
The EU, however, is not the pioneer in circular economy approaches; rather, China
and Japan have been the role models in this regard.
132
China, for the past decade, has ‘led
the world in promoting the recirculation of waste materials through setting targets and
adopting policies, financial measures and legislation’.
133
The shift in China followed the
issuance of a policy paper by China’s State Council in 2005, acknowledging the circular
economy as a means to deal with the economic and environmental risks of resource
exploitation.
134
Subsequently, a whole chapter of China’s 11th Five-Year Plan (for 2006-
2010) was devoted to the circular economy, a 2008 Circular Economy Promotion Law
obliged local and provincial governments to consider circular economy issues in their
investment and development strategies and created targets for the coal, steel, electronics,
chemical and petrochemical industries, the circular economy was upgraded to a national
130
COM(2014) 398.
131
European Commission, ‘Closing the loop: an EU action plan for the circular economy’, COM(2016)
614.
132
For Japan, see the 2000 Fundamental Law for Establishing a Sound Material-Cycle Society – No. 110 of
2000. Also see Alexandre Levillain and Shigeru Matsumoto, ‘Circular Economy and Waste Management:
A Comparative Study between Japan and France’ (2017) Journal of Waste Management and Environmental
Issues.
133
Mathews and Tan (n 126) 441.
134
ibid 441.
21
development strategy in the 12th Five-Year Plan (for 2011-2015), and the 13th Five-Year
Plan (for 2016-2020) continues this approach.
135
The Chinese and EU circular economy approaches are similar in some ways, yet
different in others. They share a concern with waste and with raw materials and resource
efficiency.
136
However, a key difference is that EU policies focus more on consumption
and product design, including product durability, repairability, recyclability and labelling,
whereas the Chinese measures focus more on increasing efficiency and reducing waste and
pollution in specific manufacturing sectors.
137
In addition, China’s circular economy policy
tends to be top-down, whereas in the EU it is more bottom-up.
138
IV) CONCLUDING REMARKS
Having reviewed the structures and principles of waste management law, it is difficult to
judge whether one country’s approach is necessarily preferable to that of another. All
have developed in response to context-specific economic pressures and incentives. All,
clearly, have room for improvement. The continual increase in the amount of waste
generated globally suggests that in general, the world’s waste management laws are not
achieving their full potential.
The rise of extended producer responsibility in many jurisdictions is a promising
development towards waste reduction and prevention. Where there is no national or
federal-level regulation of this sort, this appears to be an obvious gap which could be
filled by legislators.
Further, the increasing prominence of circular economy approaches over the last 15 years
indicates that waste is becoming a resource, at least to some extent and in some
jurisdictions. However, there is a lot further to go in order to realise the ideals of the
circular economy.
V) SELECT BIBLIOGRAPHY
European Commission, ‘Closing the loop: an EU action plan for the circular economy’,
COM(2016) 614.
Geert van Calster, EU Waste Law (2nd ed, OUP 2015)
Alexander Gillespie, Waste Policy: International Regulation, Comparative and
Contextual Perspectives (Edward Elgar 2015)
135
ibid 441.
136
McDowall (n 125) 655.
137
ibid 655.
138
Ghisellini (n 111) 18.
22
John A Mathews and Hao Tan, ‘Lessons from China’ (2016) 531 Nature 440
Noah Sachs, ‘Planning the Funeral at the Birth: Extended Producer Responsibility in the
European Union and the United States’ (2006) 30 Harvard Environmental Law Review
51
Simon A Schofield, ‘Waste Management Law in New Zealand’ (2010) 14 New Zealand
Journal of Environmental Law 223
