What Roles for Which Stakeholders under Extended Producer Responsibility?

• Author: Reid Lifset,Chris Van Rossem,Harri Kalimo,Atalay Atasu,Luk Van Wassenhove
• Date: 01 April 2015
• Published date: 01 April 2015
• DOI: http://doi.org/10.1111/reel.12087

What Roles for Which Stakeholders under Extended

Producer Responsibility?

Harri Kalimo,* Reid Lifset, Atalay Atasu, Chris Van Rossem

and Luk Van Wassenhove

This article analyzes extended producer responsibility

(EPR), two decades after the concept emerged. It con-

centrates on the scope of the producers’ responsibility

vis-à-vis other stakeholders in the context of EPR for

waste electronics. It argues that in order for a core

aspect of EPR – the creation of design incentives – to

function properly the responsibilities need to be shared

between the producers and other stakeholders, and

that the allocation of responsibilities needs to be both

more rigorous and more nuanced than is presently the

case. The article structures the discussion on, and pres-

ents solutions to, the proper allocation of responsibili-

ties by creating a framework that distinguishes

between issues relating to the core premises of EPR,

those that are a function of the multilevel system of

governance in which EPR is pursued, and those that

are of a practical nature, cutting across jurisdictional

levels.

INTRODUCTION

Despite considerable improvements in some countries,

recent statistics suggest that a resource-efficient recy-

cling society is still largely an elusive goal.1Public

authorities continue their quest for policies that would

effectively address the depletion of nonrenewable

materials, reduce emissions to air and water, prevent

the creation of waste as well as improve the recycling

and end-of-life management of products. In essence,

waste management activities need to be moved up the

waste hierarchy from sound disposal to recycling, reuse

and ultimately prevention.2An important instrument in

this pursuit is extended producer responsibility (EPR),

through which the private sector can be directly

engaged in greening the economy.

EPR as a concept was put forward by academics in the

early 1990s. The rationale behind it is quite simple: by

assigning producers financial and/or physical respon-

sibility for the management of end-of-life products,

they are led to internalize waste management consider-

ations into their overall product strategies. Rational

producers explore options to minimize the costs of end-

of-life management. Alterations in product design and

choice of material are among the most important

means to do so, and are essential for reducing the envi-

ronmental impact of products. EPR, in other words, is

one means of generating both economic and political

incentives for recovery and, more broadly, green

design.3It is our view that the central rationale for EPR

should be the creation of incentives for improved envi-

ronmental design of products (DfE4). This analysis of

the scope of producer responsibilities is premised on

that view.

The origins of the term ‘extended producer responsi-

bility’ can be traced to a report submitted to the

Swedish Ministry of the Environment in 1990.5

The development of the concept may be viewed in the

context of three general trends in environmental law-

and policy-making at the time:6the prioritization of

preventive measures over end-of-pipe approaches;

life-cycle thinking; and a shift from command and

control towards instruments such as economic and

informational tools, which leave more flexibility in

terms of how the set policy objectives are to be

* Corresponding author: Harri Kalimo, Institute for European Studies,

Vrije Universiteit Brussel, Pleinlaan 5, B-1050 Brussels, Belgium.

Email: Harri.Kalimo@vub.ac.be

1See Commission of the European Union Report on the Thematic

Strategy on the Prevention and Recycling of Waste, COM(2011) 13.

2The waste management hierarchy is a heuristic that specifies that

waste should be managed according to a set of priorities: reduction,

reuse, recycling and disposal. The European Union has adopted the

hierarchy as a principle for the management of waste. See Directive

2008/98/EC of 19 November 2008 on Waste and Repealing Certain

Directives, [2008] OJ L312/3, recital 1 and Article 4.

3R. Lifset, ‘Take it Back: Extended Producer Responsibility as a Form

of Incentive Based Environmental Policy’, 21:4 Journal of Resource

Management and Technology (1993), 163.

4Design for environment, also called ‘eco-design’, refers to the

design of products in a way that reduces the negative impacts of the

product on the environment throughout the product’s life cycle.

5T. Lindhqvist and K. Lidgren, Modeller för förlängt producent-

ansvar: Från vaggan till graven – sex studier av varors miljöpåverkan

(Ministry of the Environment, 1991).

6N. Tojo, Extended Producer Responsibility as a Driver for Design

Change: Utopia or Reality? (IIIEE Dissertations 2004:2, Lund Univer-

sity, 2004).

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RECIEL 24 (1) 2015. ISSN 2050-0386 DOI: 10.1111/reel.12087

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achieved. These three trends merge in the central idea

of extended producer responsibility: to create green

design incentives for producers.7

This article analyzes the creation of design incentives

two decades after the emergence of the concept, and

with over 400 EPR systems in operation globally.8We

focus specifically on the scope of the producers’ respon-

sibility – in other words, the division of roles between

producers and other stakeholders in the creation of

design incentives. The question of roles is critical in the

context of today’s complex, global economies. A large

number of public and private stakeholders interact in

environmental law and policy frameworks that have

evolved into deliberative processes of multiple levels of

governance and transnational networks. If the design

incentives are lost in the maze of actors and policies, a

core rationale for EPR is lost.9

The article frames its discussion against the practical

case of electrical and electronic equipment (EEE). This

group of products epitomizes global markets, and EEE

is perhaps the most prominent area where EPR is

being applied today. The leading piece of legislation in

the field – the WEEE Directive of the European Union

(EU)10 – has been comprehensively recast. The analy-

sis will not only offer insights on EPR and its evolu-

tion; it also serves more generally as a case for

portraying the challenges facing second-generation

environmental law and policy tools in greening the

global economy.

The narrative in this article proceeds on four fronts in

the discussion of the roles of producers and other stake-

holders in creating design incentives in EPR. First, it

seeks to clarify key concepts that define the roles of the

parties in EPR. The concepts have evolved and some-

times become blurred during the practical implemen-

tation of EPR. Second, the article aims to systematize

the overall EPR discourse by developing a multilevel

governance-based framework of analysis.11 Third,

drawing on these conceptual and analytical frame-

works, the article analyzes the roles assigned to the

different stakeholders so as to identify the most promi-

nent challenges to creating product design incentives in

EPR. These are issues that risk undermining the

broader EPR system or severely impeding it from func-

tioning. They should therefore be at the top of the policy

debate and agenda. The goal of the article is to bring

clarity and structure to the analysis of EPR and to

suggest possible policy paths for further exploration

rather than to advance specific remedies. While the

focus is on the WEEE Directive and its recast, the analy-

sis makes use of practical experiences that have accu-

mulated in EPR policies more broadly in the EU, but

also in the United States.

The problems relating to design incentives can be

explored in terms of two important aspects of the

stakeholders’ roles: the allocation of extended respon-

sibility among the producers, on the one hand, and the

division between the producers’ and other stakehold-

ers’ responsibility, on the other. The issues regarding

the allocation of responsibilities among the producers

are discussed in a companion article;12 this analysis

focuses on the latter topic. In particular, it examines

the following questions: What should fall within the

scope of a producer’s responsibility and what should

fall within the responsibility of other stakeholders?

What exactly should the producers be (and not be)

responsible for? What kind of (ancillary) responsibili-

ties should be allocated to other stakeholders? What

are the appropriate mechanisms for allocating such

responsibilities?

The article proposes a new, more systematic framework

for analyzing EPR. Although there is increasing

research on EPR and its shortcomings, the scholarship

often either focuses on isolated issues or gives an

7While the term ‘producers’ is often taken to mean manufacturers,

the entity in the upstream portion of the product life cycle that is

assigned responsibility under EPR varies across jurisdictions and

product categories and can include material suppliers, brand owners

and retailers. The identification of the producer is discussed below.

8P. Börkey, ‘What Have We Learned about Extended Producer

Responsibility in the Past Decade?’. Presentation at the Conference

of ACR+ & Brussels Environment EPR (R)evolution in the European

Context (Brussels, 19 September 2013).

9T, Lindhqvist and R. Lifset, ‘Can We Take the Concept of Individual

Producer Responsibility from Theory to Practice?’, 7:2 Journal of

Industrial Ecology (2003), 3, at 3.

10 The original law, Directive 2002/96/EC of 27 January 2003 on

Waste Electrical and Electronic Equipment (WEEE), [2003] OJ L37/

24, is referred to in this article as the ‘WEEE Directive’. When the new

revised law or its provisions are distinguished from the original law,

Directive 2012/19/EU of 4 July 2012 on Waste Electrical and Elec-

tronic Equipment (WEEE) (recast), [2012] OJ L197/38, they are

referred to as the ‘Recast WEEE Directive’.

11 Multilevel governance has been developed by authors such as

Rhodes (e.g., R.A.W. Rhodes, ‘The New Governance: Governing

without Government’, 44:4 Political Studies (1996), 652) and Hooghe

and Marks (e.g., L. Hooghe and G. Marks, Multi-Level Governance

and European Integration (Rowman & Littlefield, 2001)) as a model to

explain policy developments in the EU in particular. The model deals

with the optimal levels of governance through the scale of the

problem and the stakeholders affected by it, while also acknowledg-

ing the externalities at stake. Multilevel governance has subsequently

been applied to various areas of environmental law and policy in the

EU and beyond.

12 The two pieces share the same analytical framework. They are part

of an ongoing research effort to explore how incentives for DfE may

be realized or enhanced. In addition to H. Kalimo et al. (‘Greening the

Economy through Design Incentives: Allocating Extended Producer

Responsibility’, 21:6 European Energy and Environmental Law

Review (2012), 274), Dempsey et al. examine the extent to which

existing EPR systems contain elements of individual producer

responsibility (M. Dempsey et al., ‘Individual Producer Responsibility:

A Review of Practical Approaches to Implementing Individual Pro-

ducer Responsibility for the WEEE Directive’ (INSEAD, 2010)).

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