EXTENDED PRODUCER’ RESPONSIBLY IN INDIA: SHIFTING THE FOCUS TO THE RIGHT AIM

Introduction

The problem of plastic usage in India is increasing annually. In 2016, the total plastic waste generated annually excluding the Delhi NCR region was 15,89,418 which has increased to 31,35,233 in 2019. The Center has tried to control this problem by various rules and regulations, namely the Plastic Waste Management Rules, 2011. Over the time, these rules have been amended and certain provisions have been added or retracted when needed.

A major change in the plastic waste management came through Plastic Waste Management Rules, 2016, which introduced the concept of Extended Producer’s Responsibility (EPR) in India. Earlier, EPR had been introduced in E-waste Management Rules only. Rule 9 was amended in 2018 which mandates the producers to take back, recycle and tackle the multi-layered non-recyclable and non-energy renewable plastic generated by them. The 2018 amendment to these rules mandated the phasing out of multi layered plastics within two years, which are non-reusable, non-recyclable or non-energy recoverable. Recently, the state has come up with a new draft uniform framework on EPR in June 2020 which lays down certain guidelines for the producers to tackle waste generated by them through Extended Producer’s Responsibility.

Extended Producer’s Responsibility: An Assessment

The last decade has seen tremendous increase in the implementation of EPR in law and economics.[i] First formulated and devised by Lindhqvist in a 1990 report to the Swedish Ministry of Environment, according to the Global Forum on Environment, EPR is considered to be a legal tool for further development of regulatory and policy instruments to enable circular economy approaches. In EPR, the responsibility of waste management shifts from consumers and state to the producer.

EPR, through its tools of collection, recycling and penalizing, seeks to achieve two main objectives. The first is the downstream collection, reuse, recycling and treatment of the waste generated in an environmental-friendly manner.The second being the design improvements of product systems and products generated by the producer.[ii]Many countries such as Japan and Republic of Korea have well-established EPR systems in place, although the success of EPR in many such countries depended upon an already settled waste collection and recycling system which merely transferred the burden from the taxpayers to the producers.[iii]

New EPR Framework in India

India drafted the new uniform framework on EPR in June 2020. These new rules were also highlighted in the recent notices served by the CPCB to major conglomerates like Flipkart, Amazon, Coca Cola, Patanjali for not complying with their EPR regulations under Rule 9 of the Plastic Waste Management Rules, 2016. The crux of these notices was that these companies created a lot of plastic packaging for their products without taking any responsibility to tackle it after delivering the same to the consumer.

The framework proposed by the Ministry provides three kinds of responsibilities that can be attributed to the producers. Model 1 talks about the fee-based responsibility where the producers are obliged to pay the cost to urban local bodies so as to incentivise the ULBs, municipal workers, ragpickers etc.[iv] The second model talks about the plastic credit model, where a producer is not required to recycle their own packaging, but to ensure that an equivalent amount of packaging waste has been recovered and recycled to meet their obligations.[v]The third model talks about Producer Responsibility Organization, which is supposed to be formed by industries to tackle and comply with all legal requirements in plastic waste generation.[vi]The Indian uniform framework is focused on shifting the burden of plastic recollection and disposal to the producers. However, little attention is being paid to assign a responsibility to the producer in terms of the amount of waste generated by them.

Too Little Too late: The problem of EPR in India

India already generates around 10 million tonnes of plastic annually, so the focus of any plastic waste management policy in India should be to decrease the amount of plastic generated along with its reuse and recycling. This can only be done when the producers face penalties for generating more plastic than is absolutely necessary. The Center in its draft uniform framework has failed to tackle the problem of ever-increasing amount of plastic generated and has instead shifted the focus only on reuse and recycling, which owing to India’s lack of recycling and redeveloping capacity, is not likely to be effective in the near future.[vii]

The main principle on which the policy of EPR is based is the polluter pays principle.[viii] The OECD framework describes this principle as a mechanism through which the polluter should pay the costs for carrying out measures used for keeping the environment in an acceptable state.One issue which arises today with respect to this principle is that it is meant to take action after the harm is done,i.e., it does not aim at reducing pollution but keeping it at a stagnant state.

Today, preventive action which seeks to tackle the problem at its origin is considered a more suitable way to deal with plastic waste than the polluter pays principle.[ix] Plastic waste is one of the problems which generates from plastic use among many others, such as,marine deaths, health issues and greenhouse gases emission. In 2015, a study by CIEL found that in producing ethylene, a building block of plastic, 184 to 213 million metric tons of carbon dioxide is produced, equivalent to 45 million passenger vehicles in a year. One among the three problems defined above, i.e.,marine deaths can be solved through the present EPR mechanism by handling waste, while the rest two and others remain untouched since they are not caused by plastic waste but the production of plastici tself.

The present EPR policy even in EU countries has failed to incentivise the producers to shift towards more eco-friendly packaging and designing.[x] Case studies from Denmark, Netherlands, Sweden and UK have showed that EPR policies are mainly economical in nature, thereby failing to incentivise producers from shifting towards other responsibilities.[xi]The Indian uniform framework has assigned similar responsibilities to the producers. Needless to say, it has also lacked in controlling plastic production itself, similar to the EU framework.

The Way Forward

The author proposes that the EPR policy in India should be more progressive. The present uniform framework has clearly laid down many principles with respect to the stakeholders, fees, recycling and responsibility of the producer. One of the main aims of EPR today should be incentivising the producer to shift towards greener and eco-friendlier packaging and production. In 2019, Flipkart had resorted to green packaging of its products to cut plastic produce. Other big industries and companies can also be incentivised to follow such measures.

Two types of areas can be focused upon in EPR framework that can lead to successful incentivisation of the producers. Firstly, industries and companies that produce plastic in considerable large amounts such as Amazon, Flipkart, etc., should assign research and development facilities to transition into greener packaging and products. This can be further supplemented with reasonable subsidy mechanism for eco-friendly products produced by the company. Secondly, since eco-friendly products will be profitable only with appropriate demand, responsibility should be assigned to both companies and the government to raise awareness about potential benefits of sustainable products and packaging. It should be the responsibility of companies to organize awareness campaigns and advertisements with respect to importance of eco-friendly products as well as highlighting the part they play in fulling this responsibility.

The additional responsibilities proposed above will not only help in waste management but prevent the increment in plastic generation which will further abate the overall plastic pollution problem in India. This will help our country to set its foot in the right direction towards fighting environmental degradation and creating a sustainable future for generations to come.

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[i]Garth T Hickle, An Examination of Governance within Extended Producer Responsibility Policy Regimes in North America, 92Res, Cons & Rec 55, 56 (2014)

Daniel Kaffine& Patrick O’Reilly, What Have We Learned about Extended Producer Responsibility in the Past Decade? A Survey of the Recent EPR Economic Literature, (2013).

[ii]Bengtsson, Magnus, Shiko Hayashi, Yasuhiko Hotta, and Hideyuki Mori, eds. Extended Producer Responsibility Policy in East Asia: – in Consideration of International Resource Circulation –. Report. Inst. for Gl. Env. Strategies, 169-76 (2009).

[iii]Institute for Global Environmental Strategies, Conclusion, Extended Producer Responsibility Policy in East Asia: in Consideration of International Resource Circulation, 172 (2009)

[iv] Uniform framework for Extended Producer’s Responsibility 9.3.1 (Min of Env. For. Clim. Change 2020)

[v]Id at 9.3.2

[vi]Id at 9.3.3.1

[vii]Amit Jain, Current Situation of EPR Policy in India in ) Extended Producer Responsibility Policy in East Asia: – in Consideration of International Resource Circulation, 99-112 (Yasuhiko Hotta et al 2009).

[viii] Thomas LINDHQVIST, Extended Producer Responsibility in Cleaner Production(May, 2000)(Doctoral Dissertation, Lund University) 128.

[ix]KatrienSteenmans, Extended Producer Responsibility: An Assessment of RecentAmendments to the European Union Waste Frameworks Directive, 15 LAW ENV’t& DEV. J. 108 115 (2019).

[x] Emma Watkins and others, EPR in the EU Plastics Strategy and Circular Economy: A Focus on Plastic Packaging (Institute for European Environmental Policy 2017) 2.

[xi]KatrienSteenmans, ‘Enabling Industrial Symbiosis Through Regulations, Policies, and Property Rights’ (PhD thesis, University of Surrey 2018) 262.

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Sumedha Tiwari

The Author is a third year student at National Law University Jodhpur. She is a keen enthusiast of Environment law and Animal Law. She is a member of Centre for Environment, Energy, Natural Resources Law and Policy, NLU Jodhpur and Think India Animal Rights Forum.