Recyclers Applaud Court Denial of New York City’s Foam Ban Ruling Appeal

An appeals court has upheld a New York State Supreme Court ruling overturning New York City’s ban on expanded polystyrene foam (EPS) foodservice products.

The state Supreme Court’s Appellate Division denied New York City’s motion appealing the earlier decision.

Recyclers and restaurant owners applauded the decision, with the hope that it will spur EPS foam recycling.

“We remain steadfast in our commitment to helping the city recycle 100-percent of its foam products, and hope that the mayor and Sanitation Commissioner decide to implement the industry-funded comprehensive recycling proposal currently sitting on their desks, which would be a 'win-win’ for everyone,” said Randy Mastro, an attorney with Gibson, Dunn & Crutcher LLP, in a news release.

The Restaurant Action Alliance NYC, a coalition of New York City restaurant owners, filed the initial lawsuit. Dart Container Corp., recycling companies and foam manufacturers also have opposed the ban.

“The Appellate Division’s decision to deny the city’s request further proves what we have been saying all along: foam products can and should be recycled in New York City,” said Michael Westerfield, corporate director of recycling programs at Dart Container. “The evidence proves it–expanded polystyrene foam is 100 percent recyclable and can be recycled safely at no cost to tax payers. By allowing foam recycling to move forward, the city will save hundreds of jobs and bring in millions of dollars in savings, while doing what’s best for the environment.”

The opponents of the ban said it addresses a little more than 20 percent of the foam, instead of recycling 100 percent of the city’s EPS products.

Dart Container in October put out a 3-minute video aimed at New York City to make the case for EPS foam recycling in the city.

In September the state Supreme Court overturned the city’s EPS ban, calling the New York City Sanitation Commissioner’s decision “arbitrary and capricious.”

Justice Margaret Chan in the county of New York ruled Commissioner Kathryn Garcia’s conclusion that there is no sustainable market for post-consumer EPS did not address that position “when evidence contrary to her findings were clearly before her.” The city passed the law regarding single-serve EPS in January, and it took effect in July.

The city didn’t make a statement with the most recent ruling, but it spoke out against the Supreme Court’s September decision at the time. “These products cause real environmental harm, and we need to be able to prevent nearly 30,000 tons of expanded polystyrene waste from entering our landfills, streets and waterways,” said Ishanee Parikh, spokeswoman for Mayor Bill de Blasio, in a statement.

In January the city decided to ban EPS foam items and packaging starting July 1. The Sanitation Department determined that EPS foam cannot be recycled. The law stated manufacturers and stores cannot sell or provide single-use foam items such as cups, plates, trays or clamshell containers in the city. The city also banned the sale of polystyrene loose-fill packaging such as packing peanuts.

“These products cause real environmental harm and have no place in New York City,” the mayor said at the time. “We have better options, better alternatives, and if more cities across the country follow our lead and institute similar bans, those alternatives will soon become more plentiful and will cost less.”