Type: Development Article

Waste

Don’t Be Square, Be Circular: The Global Pursuit of a Circular Economy

1. Introduction

There is a growing global need to address the negative impacts of climate change. The Circular Economy (CE) concept is a framework that seeks to mitigate these adverse effects by reducing biodiversity loss, decreasing pollution, and revitalizing natural resources. This paper will define CE, describe why CE is necessary, and identify the benefits of an environmental law and policy regime that pursues a CE model. Next, this paper will explore successful CE frameworks in France and the Netherlands. Finally, this paper will describe several CE initiatives in the United States and identify how the United States could better pursue a CE framework to help aid in efforts to alleviate the detrimental effects of climate change globally.

2. Defining a Circular Economy

Global consumption—and thus, waste production—of materials such as plastics, metals, and biomass is dramatically on the rise.^[1] The natural result of heightened waste production is pollution of the groundwater, soil, and air, as well as resource depletion; and biodiversity loss.^[2] These growing issues necessitate a paradigmatic shift to a “more sustainable sociotechnical [system].”^[3] One framework that would help address the climate crisis, growing loss of biodiversity, and inequitable social impacts of these ever-increasing global issues is a CE—a framework that conceptualizes economic growth which offsets waste reduction rather than increased consumption alone.^[4]

A CE is a production/consumption model and economic system where materials are regenerated, and waste is never produced.^[5] Unlike the linear system, which uses materials to make products and eventually discards those products as waste, the CE stops materials from ever becoming waste.^[6] According to the Ellen MacArthur Foundation, a leading organization in the CE space, a CE framework rests on three fundamental principles: (1) eliminate pollution and waste, (2) circulate products and materials at their highest value, and (3) regenerate nature.^[7] In pursuit of these principles, the CE framework relies on processes like recycling, reusing, and refurbishing to keep materials in the production–consumption cycle for as long as possible, ideally in perpetuity..^[8] CE is rooted in creating efficient product life cycles by using renewable energy for design and production as well as designing and disassembling the product to be returned to nature.^[9]  Thus, this framework would rely both on consumers purchasing refurbished goods and manufacturers redesigning their products to be “less resource intensive.”^[10]

Pursuing a CE could prove revolutionary in slowing the global climate crisis’ progression. Nearly half of global greenhouse gas (GHG) emissions are a result of industry, land use, and agriculture.^[11] When recyclable goods are destroyed, their energy and resources are wasted, and destruction itself generates between 5 and 20 times the amount of GHG emissions than if the goods were otherwise recycled and reused.^[12] By eliminating waste and keeping products in the line of production for as long as possible, the CE framework allows products to retain their inherent energy, reducing net GHG emissions.^[13]

Furthermore, a CE framework would help address inequities in our current linear regime. The current methods of production and waste disposal disproportionately burdens already vulnerable and underserved communities.^[14] Landfills and emissions are primarily located in low-income communities, making them more vulnerable to the adverse health and environmental impacts that result from the linear model.^[15] A CE would help bridge this gap in the existing inequitable system.

3. Global Case Studies: France and The Netherlands

While the global transition has been slow, some countries have taken significant steps in adopting and implementing a CE framework. Generally, countries with the most ambitious CE transition plans have implemented “framework legislation,”—where their legislature outlined structures orprinciples to guide the development of specific CE laws^[16] —and have supplemented that framework with laws and other regulatory and policy measures to target particular waste producing processes.^[17] Two countries at the forefront of this transition are France and the Netherlands. Their progress provides insights that are likely globally applicable.

A. France

To combat the growing issue of waste disposal and environmental degradation,^[18] France promulgated a broad sweeping piece of CE legislation: the Anti-Waste Law,^[19] which contains roughly 50 measures intended to guide a national CE transition.^[20] The Anti-Waste Law promotes sustainable resource management from the very beginning of product design; encourages recycling and reusing materials; and sets a goal of phasing out all single-use plastic by 2040, with intermediate benchmarks to  track progress..^[21]

The Anti-Waste Law is the first of its kind, beyond any country’s CE legislation in its ambition and scope. France became the first country to categorically ban the destruction of unsold non-food products, requiring companies to reuse or donate them instead.^[22] Research indicates that consumers consider the sustainability of products when determining which products to purchase.^[23]  To incentivize environmentally conscious consumption, the Law requires various consumer disclosures. For example, it requires companies to disclose a “repairability index” for electronic products to help consumers evaluate a product’s environmental impact when purchasing.^[24] Moreover, to eliminate single-use plastic, the Law restricts plastic use across multiple sectors. It prohibits the use of plastic packaging on many types of produce; bans takeout polystyrene containers, plastic straws, and plastic cutlery; mandates public water fountains at certain public institutions; and promotes bulk purchasing to reduce unnecessary packaging.^[25] Finally, the Law promotes a “polluter pays” principle where those that produce the pollution must bear the costs of managing it.^[26] In practice, manufacturers or importers of goods that produce waste, are required to financially contribute to certified organizations to collect and recycle such waste.^[27] To ensure compliance, those that engage in illegal waste dumping could face fines of up to 15,000 Euros.^[28]

B. The Netherlands

Like France, the Netherlands is considered one of the leading countries in the CE transition, with a goal of complete circularity by the year 2050.^[29] The National CE program identifies four ways to achieve a CE: (1) ultimately eliminating non-renewable materials in production; (2) substituting non-renewable materials for renewable, sustainably produced materials; (3) expanding the life-cycle of a products in production; and (4) improving processing so that products can be reused to reduce waste.^[30]

Using this framework, the Netherlands formulated a policy to target specific products and industries that are the most environmentally burdensome. These include consumer goods, plastics, construction, and manufacturing.^[31] The Dutch Cabinet is responsible for implementing the program to achieve complete circularity, and the framework requires government-wide support and compliance.^[32] Furthermore, to help hasten the CE transition, the Dutch approach recently transitioned from being largely non-binding and voluntary to mandating standardized compliance across multiple sectors.^[33]

4. United States

The United States has not yet nationally pursued an explicit and broad CE framework like that of France or the Netherlands. This may be because of the constraints of the U.S. Constitution and the U.S. federalist structure. Otherwise, the United States may not have a physical imperative to embrace CE when compared to other countries, given its expansive geography and relative wealth. The United States has a vast surface area to place landfills and other facilities to dispose and store byproducts of production and unused materials.^[34] Regardless of the explanation, at least so far, progress toward a CE has been relatively piecemeal, primarily undertaken federally by the Environmental Protection Agency (EPA) via guidance documents and resources, and by individual states.^[35] The existing non-comprehensive approach leaves holes in the statutory and regulatory regime, that individual states cannot address.^[36] For instance, the United States has not taken the initiative to address the significant environmental impact of shipping waste overseas.^[37] A broad framework similar to that of France and the Netherlands could potentially address the gaps left by the current scheme for tackling climate change.

The EPA and individual states have taken steps that demonstrate how a CE framework would safeguard biodiversity and prevent the spread of climate change.^[38] In 2020, the EPA Administrator announced a National Recycling Goal to increase recycling to 50% by the year 2030.^[39] Furthermore, in 2022 the EPA released a report titled “Progress in Building a Circular Economy,”^[40] which outlined federal sustainability advancements through 2022 in furtherance of a Circular Economy.^[41] This included the publication of part one of the Circular Economy Strategy Series, the development of strategies to reduce plastic waste, and general next steps toward building a Circular Economy.^[42] In June 2024, the EPA—along with the White House, U.S. Department of Agriculture, and U.S. Food and Drug Administration—released the National Strategy for Reducing Food Loss and Waste and Recycling Organics.^[43] This strategy identified four main policy objectives to “build[] a more circular economy for all,” which includes preventing food loss, preventing food waste, increasing recycling for all organic waste, and supporting policies that incentivize and encourage food loss, waste prevention, and organics recycling.^[44] Furthermore, the White House released reports that describe CE initiatives to combat climate change.^[45]

While legislatively limited, support for a CE transition can be found in new laws and policies such as the CHIPS and Science Act, the Save our Seas Act 2.0, and the Inflation Reduction Act. While significant, these laws are narrow in scope, as they target only specific sectors and often fail to embrace CE as the underpinning policy issue. Thus, the effects are not as robust as necessary to effectuate circularity on a large scale.^[46] For example, the 2020 Save Our Seas Act 2.0 specifically addresses marine debris by establishing requirements and incentives aimed at preventing plastic pollution.^[47] The Act states that the EPA is responsible for developing a report on how to use plastic in consumer products innovatively.^[48] Further, the CHIPS and Science Act identifies the CE transition as necessary to achieve the national science and technology research objectives.^[49] In 2022, the White House Office of Science and Technology Policy, inaugurated the Net-Zero Game Changers Initiative stating that a national framework to achieve a CE is necessary and calling on administrative agencies to act in achieving net-zero GHG emissions by 2050.^[50] Moreover, the Inflation Reduction Act (IRA) provides incentives for the transition to clean energy,^[51] encouraging wind and solar investment.^[52] Notably, however, the IRA does not explicitly identify a “circular economy” as the goal.^[53] While these policies are essential, they fail to establish a comprehensive framework mandating multi-sector CE compliance. Instead, they only address individual waste-producing processes or list broad CE goal without any enforceable actions. To combat the climate crisis, mandatory CE legislation may prove more effective.

Meanwhile, some states have undertaken CE initiatives that require mandatory compliance. For example, multiple states have total bans on single-use plastics.^[54] Illinois recently passed legislation that permits customers to bring reusable containers to restaurants.^[55] California passed a bill to address textile waste as a result of fast fashion by creating a framework for textile producers to recycle garments.^[56] While state-based policies are moves in the CE direction, to fully realize and effectuate such a paradigmatic shift, the nation will likely need to evolve from the piecemeal approach to one that is grounded in broad federal framework legislation that expansively targets a CE transition.

5. Conclusion

Ultimately, the U.S. pursuit of a CE is not in the global lead, with opportunities for acceleration. At the federal level, action has been primarily undertaken by the EPA via guidance documents and resources, embracing White House goals and policies, with some piecemeal support from the legislature embedded in laws such as the CHIPs and Science Act and the Inflation Reduction Act. A federal legislative CE framework has not yet emerged, compared to France and the Netherlands, which have undertaken broad programs that often mandate compliance across multiple sectors with continued more particularized requirements added to meet needs over time. To transition to a CE at the national level, the United States may need a broad federal law that mandates compliance across multiple sectors.   

Amanda Halter is managing partner of the Houston office of the international law firm of Pillsbury Winthrop Shaw Pittman, a member of the firm’s Environmental & Natural Resources practice section and co-leader of the firm’s Crisis Management team. Amanda helps companies resolve environmental liabilities and negotiate compliance conditions, as well as manage financial and reputational losses associated with a crisis. Her experience includes a diverse array of environmental regulatory, litigation and crisis matters, including contamination investigations and remedial actions, natural resource damages assessments and claims, environment, health and safety compliance counseling, mass toxic tort actions, permitting and planning for large-scale industrial projects, and project impacts mitigation and restoration strategies. Amanda is a native of Houston, a graduate of Rice University and The University of Texas School of Law.

Grace Wright is a 3L from Arlington, Texas. She attended Tulane University for her B.S. in Political Science and Psychology and joined TELJ during her second year of law school.

 [1] Eur. Comm’n, Commc’n from the Comm’n to the Eur. Parl., the Council, the European Econ. And Social Comm. And the Comm. Of the Regions, A New CE Action Plan For a Cleaner and More Competitive Earth, at 3, COM (2020) 98 final (Nov. 3, 2020).

[2] Martin Geissdoerfer et al., A CE—A New Sustainability Paradigm?, 143 J. of Cleaner Prod. 757, 757 (2017).

[3] Id. at 757.

[4] Bridget T. Schuster, As the World Turns: Global Efforts Toward a CE, 37 Nat. Res. & Env’t 28, 28 (2022).

[5] What is a Circular Economy?, Ellen MacArthur Found., https://www.ellenmacarthurfoundation.org/topics/circular-economy-introduction/overview (last visited Feb. 12, 2025) [hereinafter What is a Circular Economy?].

[6] Id.

[7] Id.

[8] Id.; What is a Circular Economy?, Env’t Prot. Agency, https://www.epa.gov/circulareconomy/what-circular-economy (last updated Aug. 26, 2024) [hereinafter CE EPA].

[9] Schuster, supra note 4.

[10] CE EPA, supra note 8.

[11] Fixing the Economy to Fix Climate Change, Ellen MacArthur Found. (Nov. 15, 2022), https://www.ellenmacarthurfoundation.org/news/fix-the-economy-to-fix-climate-change-the-role-of-food-and-mobility [hereinafter Fixing the Economy to Fix Climate Change].

[12] France’s Anti-Waste and CE Law, Ellen MacArthur Found. (Sept. 12, 2022), https://www.ellenmacarthurfoundation.org/circular-examples/frances-anti-waste-and-circular-economy-law [hereinafter France’s Anti-Waste and CE Law].

[13] Fixing the Economy to Fix Climate Change, supra note 11.

[14] CE EPA, supra note 8.

[15] Id.

[16] Framework Law, Sci. Direct, https://www.sciencedirect.com/topics/social-sciences/framework-law (last visited Oct. 16, 2024).

[17] G. Gordon Davis & Jessica Anne Hall, CE Legislation—The International Experience, Reusable Indust. Packaging Ass’n, https://www.reusablepackaging.org/insights/circular-economy-legislation-the-international-experience/ (last visited Feb. 16, 2025).

[18] France produced 4.6 tons of waste per capita and 4.5 million tons of total plastic waste in 2016, causing significant environmental damage where 10,000 tons of waste were dumped into the Mediterranean Sea and 80,000 tons polluted the environment. Annually, the cost of unsold products subsequently destroyed was valued at 630 million Euros. France’s Anti-Waste and CE Law, supra note 12.

[19] See La 2050-105 du loi anti-gaspillage pour une economie circulaire [The Anti-Waste Law for a CE], Journal Officiel de la Republique Francaise [J.O.] [Official Gazette of France].

[20] A French Act of Law Against Waste and for a CE, Euro. CE Stakeholder Platform, https://circulareconomy.europa.eu/platform/en/strategies/french-act-law-against-waste-and-circular-economy (last visited Oct. 16, 2024).

[21] Janet Domenitz, How France’s Anti-Waste Law Targets Plastic Waste at its Source, Frontier Grp. (Sept. 28, 2023), https://frontiergroup.org/articles/how-frances-anti-waste-law-targets-plastic-waste-at-its-source/; see also France’s Anti-Waste and CE Law, supra note 12.

[22] France’s Anti-Waste and CE Law, supra note 12.

[23] See Sylvie Gallage-Alwis, Nancy Forster, & Eva Biezunski, France’s New Anti-Waste Law 1 (2020), https://www.signaturelitigation.com/wp-content/uploads/2020/03/Signature-Litigation-Paris-Briefing-Note-Frances-new-anti-waste-law-March-2020.pdf.

[24] France’s Anti-Waste and CE Law, supra note 12.

[25] Elisabeth Borne and Brune Poirson, The Anti-Waste Law in the Daily Lives of the French People, What Does That Mean in Practice? 8 (2020), https://circulareconomy.europa.eu/platform/sites/default/files/anti-waste_law_in_the_daily_lives_of_french_people.pdf; Domenitz, supra note 21.

[26] Gallage-Alwis, Forster, & Biezunski, supra note 24, at 2; Borne & Brune Poirson, supra note 29, at 27.

[27] Gallage-Alwis and Forster, & Biezunski, supra note 24, at 2.

[28] Id.

[29] Circular Dutch Economy by 2050, Gov’t of the Netherlands, https://www.government.nl/topics/circular-economy/circular-dutch-economy-by-2050 (last visited Oct. 16, 2024).

[30] Id.

[31] The Netherlands Central Government, English Summary National CE Programme 2023-2030, at 4 (2023), https://National+Circular+Economy+Programme+2023+-2030+Summary%20(1).pdf.

[32] Id.

[33] Vivianne Heijnen, National Circular Economy Programme 2023-2030, at 5 (2023), https://NPCE+Circulaire+Economie+rapport+Engels%20(1).pdf.

[34] Schuster, supra note 4, at 29.

[35]  Id.

[36] Jennifer Gentile, Adoption of a CE in the United States, Am. Bar Ass’n (Feb. 8, 2024), https://www.americanbar.org/groups/environment_energy_resources/resources/newsletters/environmental-social-governance-sustainability/adoption-circular-economy-in-us/?abajoin=true.

[37] Id.

[38] See Mark Weick & Nicole Ray, Circular Economy: Navigating the Evolving Global Policy Landscape, EY (Dec. 16, 2022), https://www.ey.com/en_us/insights/chemicals/circular-economy-navigating-the-evolving-global-policy-landscape.

[39] U.S. Env’t Prot. Agency, U.S. National Recycling Goal, https://www.epa.gov/circulareconomy/us-national-recycling-goal (last updated Feb. 22, 2024).

[40] CE EPA, supra note 8.

[41] Id.

[42] U.S. Env’t Prot. Agency, Building a Circular Economy for All: Progress Toward Transformative Change 2–5 (2022),  https://www.epa.gov/system/files/documents/2022-09/EPA_Circular_Economy_Progress_Report_Sept_2022.pdf

[43] See U.S. Env’t Prot. Agency, National Strategy for Reducing Food Loss and Waste and Recycling Organics, https://www.epa.gov/circulareconomy/national-strategy-reducing-food-loss-and-waste-and-recycling-organics (last updated Jan. 24, 2025).

[44] Id.

[45] Sally Benson et al., Advancing a Circular Economy to Meet Our Climate, Energy, and Economic Goals, The White House (July 5, 2023), https://www.whitehouse.gov/ostp/news-updates/2023/07/05/advancing-a-circular-economy-to-meet-our-climate-energy-and-economic-goals/.

[46] Gentile, supra note 38.

[47] Save Our Seas 2.0 Act, Pub. L. No. 116-224, 134 Stat. 1072 (2020); see also Save Our Seas Act 2.0, One Planet (Jan. 31, 2022), https://www.oneplanetnetwork.org/knowledge-centre/policies/save-our-seas-act-20 [hereinafter SOS, One Planet].

[48] SOS, One Planet, supra note 49.

[49] CHIPS and Science Act, Pub. L. No. 117-167, 136 Stat. 1634, § 206(b)(1)(A)(ii) (amending Section 206 of the National Science and Technology Police Organization, and Priorities Act of 1976, 42 U.S.C. 6615); see also Time to Act: Seizing the Potential of U.S. CE Innovation, Ellen MacArthur Found. (June 7, 2023), https://www.ellenmacarthurfoundation.org/articles/time-to-act-seizing-the-potential-of-us-circular-economy-innovation [hereinafter Time to Act].

[50]Time to Act, supra note 51; The White House, U.S. Innovation to Meet 2050 Climate Goals: Assessing Initial R&D Opportunities 5 (2022), https://www.whitehouse.gov/wp-content/uploads/2022/11/U.S.-Innovation-to-Meet-2050-Climate-Goals.pdf.

[51] U.S. Env’t Prot. Agency, Summary of Inflation Reduction Act Provisions Related to Renewable Energy, https://www.epa.gov/green-power-markets/summary-inflation-reduction-act-provisions-related-renewable-energy (last visited Feb. 13, 2025).

[52] Aly Bryan, How the Inflation Reduction Act Will Accelerate the Case for Investing in the Circular Economy in the United States, Closed Loop Partners (Aug. 18, 2022), https://www.closedlooppartners.com/how-the-inflation-reduction-act-will-accelerate-the-case-for-investing-in-the-circular-economy-in-the-united-states/.

[53] Gillian Tett, Why ‘Circularity’ is Missing from the U.S. Climate Incentives Bill, Fin. Times (Feb. 14, 2023), https://www.ft.com/content/8f4ffd3d-c6f6-44ca-a01b-96a6cd5f4ba2.

[54] Gentile, supra note 38.

[55] Id.

[56] Danielle Garno & Vicky Yuan, A Closer Look at California’s Recently Passed Responsible Textile Recovery Act of 2024, Holland & Knight (Oct. 17, 2024), https://www.hklaw.com/en/insights/publications/2024/10/a-closer-look-at-californias-recently-passed-responsible.

Waste

Nuclear Fusion Waste Regulation

What is Nuclear Fusion?

Nuclear fusion is a process that generates power by combining two light atomic nuclei to form a heavier atomic nucleus.^[1] Nuclear fusion naturally occurs in stars, where the high temperature and strong gravity allow atoms to fuse, releasing energy.^[2] There are three main methods of fusion power generation: magnetic confinement, inertial confinement, and magnetized target fusion.^[3]

 Magnetic confinement models achieve fusion by heating up plasma confined within a magnetic field.^[4] In a state of plasma, electrons are stripped off of atoms, creating free electrons and ions.^[5] Those ions are then stimulated to smash into each other and cause fusion reactions.^[6] Because plasma is highly unstable, magnetic confinement fusion reactors use magnetic forces to contain the ions within the plasma.^[7] The magnetic forces safely contain the unstable ions, cycling them in a container—one example of these containers is a tokamak, which has a donut-shape.^[8] 

Inertial confinement fusion reactors use laser or ion beams to heat and compress the fuel, while magnetized target fusion reactors use both lasers and a magnetic field to achieve fusion.^[9]

If nuclear fusion becomes feasible at large scales, it will be a “clean, safe, and affordable energy” option.^[10] Fusion is more efficient than nuclear fission or burning oil and coal—it creates four times more power per kilogram of fuel than nuclear fission and four million times more power per kilogram of fuel than burning oil or coal.^[11] Furthermore, unlike burning fossil fuels, fusion does not emit carbon dioxide.^[12]

What Waste Does Nuclear Fusion Produce?

Fusion does not produce highly radioactive waste like fission does. Instead, it produces varying amounts of low-level waste depending on the structure surrounding the reactor.^[13] Radioactive waste is commonly classified into low level waste (LLW), intermediate level waste, and high level waste.^[14] There are also lower levels of radioactive waste, such as very low-level waste.^[15] Although fusion produces radioactive waste, this waste is mostly structural LLW from the steel and concrete used in the system.^[16] Tritium is involved in fusion power production, but it is produced and consumed in a closed loop within a fusion reactor, so it is not a waste product of fusion.^[17] Additionally, tritium has a short half-life, which poses low risk.^[18] The most dominant fusion waste is structural waste, including different types of steel that encase a system.^[19] The radioactive waste classification of the steel depends on the alloying elements used in the steel, with different compositions having different decay times.^[20] Because fusion produces varying levels of LLW, an effective recycling method for the fusion LLW and effective structural components around the reactor are important considerations in regulation.

What is the Current State of Fusion Waste Regulation in the U.S.?

Fusion regulation has developed significantly since the start of 2023. On January 3, 2023, the Nuclear Regulatory Commission (NRC) submitted SECY-23-0001, “Options for Licensing and Regulating Fusion Energy Systems.”^[21] This paper provided the NRC with three options for fusion regulation:

1. Regulate fusion energy systems under a utilization facility framework,
2. Regulate fusion energy systems under a byproduct material framework, or
3. Regulate fusion energy systems under a hybrid framework using either a byproduct material or utilization facility approach based on potential hazards.^[22]

Under option one, fusion energy systems would be regulated under the same scheme as nuclear fission reactors.^[23] Under option two, the focus would be on regulating the radioactive materials used or produced by the fusion energy system.^[24] For example, the concrete and steel structures become radioactive through the fusion process, so they would be regulated. The third option would provide a case-by-case hybrid framework, combining the first and second options.

On April 13, 2023, the NRC issued SRM-SECY-23-0001, “Staff Requirements – SECY-23-0001 – Options for Licensing and Regulating Fusion Energy Systems,” opting to follow option two, the byproduct material framework as laid out in 10 C.F.R. Part 30.^[25] This decision is a positive outcome for the nascent nuclear fusion industry. Option one would have regulated fusion energy systems like fission reactors, and it was an overly conservative measure.^[26] Fission reactors have significantly different risks, structures, and safety components compared to fusion systems. Current fusion energy systems are safe, as the system will automatically shut itself off if the reaction cannot be controlled.^[27] The risks in fusion energy systems are focused on the waste materials, while the risks of fission reactors include the waste materials and a potential meltdown.^[28] Option two, the material byproduct option, balances efficiency and risk better than the other two options. The NRC’s decision also notes that, in the event of the risks of fusion changing in the future, the staff should notify the NRC and make appropriate recommendations for new guidelines.^[29] Barring any unforeseen future developments, fusion energy systems will be regulated under the 10 C.F.R. Part 30 byproduct material standard.

Unlike fission reactors that are solely regulated by the NRC, the NRC’s byproduct material standard can be enforced at the state level in all Agreement States, with an opt-out clause option for Agreement State responsibilities.^[30] The Agreement State Program is in place to allow states to locally enforce the byproduct material standards.^[31] Any non-federal entity that wishes to possess or use byproduct material in an Agreement State must go through the proper channels within that state. Following SRM-SECY-23-0001, the byproduct material standard will be required for nuclear fusion energy systems, and the utilization framework will not.^[32] If any non-federal entities in an Agreement State wish to use or possess the byproduct material coming from a fusion energy system, then that entity will likely need to apply to the Agreement State directly.^[33] To clear up any ambiguity in the status of byproduct materials in fusion energy systems, the NRC recommends that the staff develop a new volume of NUREG-1556, “Consolidated Guidance About Materials Licenses,” that would cover fusion energy systems.^[34] This would provide states with consistent guidance for dealing with nuclear fusion byproduct materials.^[35]

Conclusion

As of the most recent updates from the NRC, nuclear fusion energy systems will be regulated under the byproduct materials standard in 10 C.F.R. Part 30. Fusion energy systems will not have the same level of strict regulations that nuclear fission reactors have due to the significantly lower risk involved in a nuclear fusion energy system. This regulation is a step in the right direction for the growth of the nuclear fusion industry. However, the byproduct materials standard could still pose financial barriers based on disposal cost and feasibility. It is also worth noting that the byproduct standard has gone through significant changes as technology has evolved; for example, the code was amended in 2008, adding radioactive particle-accelerator material to the byproduct materials definition.^[36] Technology has changed drastically since the inception of the byproduct materials standard in 1965, and the regulation of byproduct materials must adapt to reflect those changes in technology. The exact level of fusion regulation depends on forthcoming guidance from the NRC regarding the specifics of the fusion byproduct material standard, but the general framework is in place. Additionally, any changes in nuclear fusion technology that could pose new risks will be met with new recommendations from the NRC.

Amanda Halter is managing partner of the Houston office of the international law firm of Pillsbury Winthrop Shaw Pittman, a member of the firm’s Environmental & Natural Resources practice section and co-leader of the firm’s Crisis Management team. Amanda helps companies resolve environmental liabilities and negotiate compliance conditions, as well as manage financial and reputational losses associated with a crisis. Her experience includes a diverse array of environmental regulatory, litigation and crisis matters, including contamination investigations and remedial actions, natural resource damages assessments and claims, environment, health and safety compliance counseling, mass toxic tort actions, permitting and planning for large-scale industrial projects, and project impacts mitigation and restoration strategies. Amanda is a native of Houston, a graduate of Rice University and The University of Texas School of Law.

Eric Trimble is a 2L from Laytonsville, Maryland. He attended Arizona State University for his B.S. in Mathematics and Economics. He joined TELJ during his first year of law school and has long been interested in the field of environmental law ever since he took environmental economics in his undergraduate.

Waste

The State of Plastic

The Plastic Waste Landscape

Modern life depends on plastic. It seals our food, insulates our homes, and clothes our bodies.[1] However, as plastic degrades and becomes waste, the ubiquitous material is also creating one of the greatest pressing environmental challenges today. The life cycle of plastic is not as cyclical as some might think—from 1950 to 2015, 12% of plastic waste was incinerated, 79% discarded, and only 9% recycled.[2]   The plastic that is recycled is usually downcycled and transformed into lower value uses that are not suitable for further recycling.[3] As a result, about 8 million tons of plastic waste leaches into the oceans every year, sometimes taking over 400 years to break down.[4] Unfortunately, the plastic waste problem is only growing. Plastic production in the last fifteen years makes up half of all the plastic ever manufactured.[5] In fact, from 1950 to 2015, plastic production increased from 2.3 million tons to 448 million tons, and is expected to double by 2050.[6]

The United States Plastics Regulatory Regime

The United States plays a critical role in resolving the plastic waste problem. The U.S. generates more plastic waste than any other country, with forty-two million metric tons in 2016.[7] Some estimations also rank the U.S. as the third largest contributor of total mismanaged plastic waste to the coastal environment.[8] In 2016, the U.S. contributed up to 1.45 million metric tons of plastic waste, which may represent as much as a 400% increase from a 2010 estimate.[9] The U.S. recycling rate has also stayed relatively low (9%) as compared to other global leaders such as Europe (30%) and China 25%).[10]

RCRA and Federal Solid Waste Policies

The U.S. plastic regulatory scheme is largely focused on solid waste and waste management. The Resource Conservation and Recovery Act (RCRA) is the principal federal law regulating solid waste disposal, storage, and treatment.[11] While the statute establishes the framework for a national system of solid waste control, household waste and much of municipal solid waste are exempted from RCRA coverage.[12]

Nevertheless, numerous federal activities have attempted to change the U.S. plastic waste trajectory. The Protecting Communities from Plastics Act (PCPA) was introduced on December 1, 2022, by Democratic lawmakers to address “the plastic production crisis that is fueling climate change and perpetuating environmental injustice” and to prioritize a transition away from plastics.[13] The bill would reduce the U.S. economy’s reliance on certain single-use plastics, establish new national targets for plastic source reduction, and create federal incentives to expand reusable and refillable systems.[14] Specifically, PCPA authorizes the Environmental Protection Agency (EPA) to create federal targets for plastic source reduction and reuse for single-use plastic packaging and foodservice ware by the end of 2027.[15] It also sets a minimum 25% source reduction target and at least a 30% reuse and refill target by 2032.[16] However, industry opposition and strong partisan politics may prevent the bill’s passage into law. Indeed, a bill in 2021 backed by congressional Democrats that included similar source reduction goals failed to pass.[17]

At the executive level, the Biden Administration issued section 207 of Executive Order 14057 the same month PCPA was introduced.[18] The executive order directs federal agencies to reduce waste, support the recycled products market, and initiate a potential General Services Administration rulemaking to reduce single-use plastic packing in federal procurement.[19] Numerous federal agency actions are also working concurrently to reduce plastic pollution. The EPA released its National Recycling Strategy last fall and earmarked $275 million for solid waste recycling grant programs.[20] The Department of the Interior is also set to phase out all single-use plastics products from federally managed lands by 2032.[21] Last year, the National Oceanic and Atmospheric Administration released its draft Report on Microfiber Pollution which will outline a path for federal agencies to address microfiber pollution once finalized.[22]

State-Level Solid Waste Policies

There are few laws regulating plastic waste on a state level. The most prominent state regulations are plastic bag bans; however, only eight states have banned single-use plastic bags, and enforcement often occurs through civil actions and fines.[23] In the absence of statewide regulations, many municipalities have enacted bans on some kind of plastic, with over 350 U.S. cities adopting a plastic bag ban.[24] However, the growth of citywide plastic bans has triggered many “preemption battles” between cities and states.[25] Seventeen states have gone in the opposite direction, passing laws that prevent municipalities from enacting ordinances that ban plastic bags.[26] These preemption statutes reserve the power to regulate plastic bags to the state.[27]

The Texas Supreme Court has held that state law preempts local attempts at regulating plastic bags.[28] The city of Laredo adopted a ban on single-use bags in 2014 that was subsequently challenged by the Laredo Merchants Association for violating the Texas Solid Waste Disposal Act.[29] The Act says that local governments may not “prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law.”[30] The lawsuit reached the Texas Supreme Court, which struck down Laredo’s plastic bag ban, holding that state law on solid waste disposal pre-empted the local ordinance.[31]

A few states have begun adopting extended producer responsibility (EPR) legislation to combat plastic waste.[32] EPR is a concept where producers bear a greater degree of responsibility for the environmental impact of their goods throughout the products’ life cycle, including impacts from material sourcing, the production process, and subsequent use and disposal.[33] California is the fourth state to adopt an EPR bill into law that shifts much of the plastic-reducing burden from consumers to industry, but it may be the most significant.[34] The legislation not only requires an overall reduction in single-use plastic production, but it also obliges producers of certain single-use products to reduce production by 25% by weight and 25% by plastic component source by 2032.[35] Plastic producers must also contribute $5 billion over the next ten years to fund recycling and single-use plastic packaging reduction.[36]

United Nations Treaty

On March 2, 2022, United Nations representatives from 175 nations committed to crafting a legally binding global agreement to combat the exploding plastic pollution problem by 2024.[37] The first two of five planned negotiation meetings have since occurred, and stakeholders anticipate the treaty will include many detailed regulations that will affect plastics operations and management practices.[38] Future negotiations will continue to work out technical measures and rules.[39]

Nations are currently split as to whether to emphasize recycling and waste management or to prioritize reducing plastic production.[40] Fifty nations have formed the High Ambition Coalition to End Plastic Pollution, a union of countries that want a global agreement with plastic production limits and binding targets for every nation that adopts it.[41] This could include bans on certain types of plastics.[42] Other countries, including Saudi Arabia and the U.S., are pushing for a treaty that focuses on plastic recycling and voluntary commitments.[43] This kind of proposed treaty would be “bottom-up” like the Paris Agreement, in which nations are given latitude to develop their own plans and create their own targets.[44]

Conclusion

The U.S. is in a unique position to make a significant impact on plastic pollution as one of the largest global contributors to plastic waste. However, the current national plastic regulatory regime is largely disjointed. RCRA exempts hazardous household waste which has created pre-emption battles between municipalities and states over plastic bans. Pending bills aimed at plastic pollution reduction also seem unlikely to become law in the current partisan political environment. Nonetheless, several federal and state developments in plastic waste reduction have gained steam with President Biden’s Executive Order 14057, numerous federal agency actions, and several state EPR acts. Additionally, U.S. participation in the UN negotiations to create a legally binding global agreement by 2024 creates an opportunity for the U.S. to effectuate real change in the current plastic waste landscape.

Amanda Halter is managing partner of the Houston office of the international law firm of Pillsbury Winthrop Shaw Pittman, a member of the firm’s Environmental & Natural Resources practice section and co-leader of the firm’s Crisis Management team. Amanda helps companies resolve environmental liabilities and negotiate compliance conditions, as well as manage financial and reputational losses associated with a crisis. Her experience includes a diverse array of environmental regulatory, litigation and crisis matters, including contamination investigations and remedial actions, natural resource damages assessments and claims, environment, health and safety compliance counseling, mass toxic tort actions, permitting and planning for large-scale industrial projects, and project impacts mitigation and restoration strategies. Amanda is a native of Houston, a graduate of Rice University and The University of Texas School of Law.

Yuyan Pu is a 2L from just outside of Philadelphia in Berwyn, Pennsylvania She studied economics and sociology at Johns Hopkins University. Yuyan joined TELJ her 1L year and will be at the San Francisco and Washington, D.C. offices of Baker Botts during the summer of 2023.