Ontario’s Waste Diversion Act (WDA) is described as creating, “…Waste Diversion Ontario (WDO), a permanent, non-government corporation, which is run by a Board of Directors comprised of industry, municipal and non-governmental representatives.” The Act also gives, “…WDO the mandate to develop, implement and operate waste diversion programs — to reduce, reuse or recycle waste.”
This superficial description of what the WDA does doesn’t convey what the WDA really is: an ideologically driven attempt at Extended Producer Responsibility (EPR) that confuses “privatizing” the public policy process with assigning individual producers the life-cycle environmental, financial responsibilities for their product and packaging wastes (while giving them the freedom to design programs to manage those responsibilities).
In concert, the Government of Ontario’s tenuous control of WDO, the governance of the program development process, and the program development process itself all conspire to doom stewardship programs developed under the Act to failure.
With regard to governance, the WDO and its subsidiary Industry Funding Organizations (IFOs) are under the unfettered control of producers. The IFOs — competing producers forced by law to coalesce into a functional combine — are told to assume the impossible and self-conflicted task of developing stewardship programs that internalize stewardship program costs to themselves while ensuring that their programs, “…affect Ontario’s marketplace in a fair manner.”
It’s not surprising that to date the WDA mandated program development process has produced programs that are of superficial or dubious environmental merit, propose to push costs away from producers to other market players (primarily consumers) and that portend economic havoc amongst existing businesses already collecting and recycling wastes for which WDA based programs are being developed.
The combined effects of the various provisions of the Act conspire to give Ontario’s WDA a firm placing amongst the most ineffectual pieces of environmental and economic legislation enacted by any Canadian jurisdiction and, by extension, the WDO as one of the most ineffective delegated administrative bodies in Canada.
Aside from approving the blue box “funding model” as developed by Stewardship Ontario (the blue box IFO under WDO), not one other waste diversion program has been successfully developed by WDO in the five years since the Act was passed!
The used-oil program developed by lubricating oil brand-owners and big box retailers was found to be contrary to the environmental and economic requirements of the Act and was thus rejected by WDO. The levying of consumer fees to fund the proposed scrap tire program (developed by tire brand-owners and big box tire retailers) were found to be unconstitutional, forcing WDO to “withdraw” the program from the Ministry for “further work.”
More recently, the Municipal Household Hazardous Waste program (MHSW) program plan (also developed by Stewardship Ontario) currently under deliberation by the environment ministry is missing key environmental and economic program elements and has been described by some as a “plan to develop a plan.”
Designated for stewardship program development in December of 2004, Waste Electronics and Electrical Equipment (WEEE) program development remains embryonic with the stewardship organization — Ontario Electronic Stewardship (yet again another manifestation of Stewardship Ontario) — having recently requested for an extension to the current program development timelines set out by the minister.
In fact, since 2002 the only waste diversion program implemented in Ontario is the Ontario Deposit-Refund Program for Liquor Control Board of Ontario (LCBO) containers — a program not only mandated and developed entirely outside of the WDA, but one that will eventually mean the LCBO is no longer subject to provisions of the WDA!
With this program development legacy as background and five years having passed since the enactment of the WDA, S.44 of the Act mandates a legislative review.
Properly undertaken, such a review falls under the purview of what is called an economic analysis of law — that is, an assessment of the Act in the context of the economic and environmental outcomes associated with the design of the Act and operation of WDO as its delegated administrator.
Specifically, such a review would entail looking at how the provisions of the Act manifest themselves in:
* The behavior of the WDO’s governors (the Board) and the WDO’s administration of the Act (i.e., a review of the WDO’s interpretation of its jurisdiction, how key WDO decisions were made and the outcome of those decisions);
* The behavior of stewards, municipalities, material collectors and processors etc. and impacts (i.e., winners/losers, changes in commercial competition, cost to consumers, etc.) of WDO decisions on various economic players;
* Program environmental outcomes — specifically what are the measurable results in terms of how much material is recovered, reused, recycled (by the blue box, used oil, scrap tire, MHSW, WEEE programs); and
* A normative analysis, which is really about determining whether the observed effects of the WDO’s activities are consistent with the public interest as codified in the government’s stated environmental and economic policy objectives.
Having identified the fundamental problems with WDA such an analysis might propose an alternate regulatory construct; that is, a different set of legal rules that might result in outcomes better than that observed under the legal rules offered by the WDA.
At the time of this writing, a working group comprised of legal academics, practicing environmental lawyers and public policy analysts is forming to undertake just such a rigorous review of the WDA. The goal will be to provide the Ontario Government with a realistic set of changes to the Act such that producers are provided with simple rules to design and implement waste diversion programs that work in a complex world.
Usman Valiante is principal of the Corporate Policy Group in Orangeville, Ontario. Contact Usman at firstname.lastname@example.org