Much Ado about Waste
Waste is in the core of circular economy both linguistically and in practice. The blog post of the CICAT2025 in October discussed the linguistics of “waste” and “trash” and their impact on people’s attitudes. “Waste” is, however, also – and to lawyers foremost – a legal concept. In the European and Finnish national legislation it refers to an object or substance that has been discarded. The objective of waste legislation is rather straight forwardly to ensure adequate waste management. In turn, other materials are subject to product legislation. In order to waste to be utilised as secondary raw material in the circular economy, waste-based materials have to cease being waste.
CICAT2025 project examined the legal barriers for circular economy by consulting experts in a Delphy study – fittingly named after the esteemed oracle of ancient Greece. And just like the ancient oracle, the experts shared their experience-based wisdom and prophesies in an anonymous web-based panel.
Our oracles assessed the present situation as well as the future of different stages of materials lifecycle. It appears that currently circular economy focuses on the end-of-life stage and recovery of waste as secondary raw material. The emphasis is expected to shift towards better product design and service-oriented economy in the near future. However, the recovery of waste materials is believed by the panellists to remain one of three most important stages of lifecycle in the circular economy.
The oracles also emphasised the distinction between waste and non-waste – linguistically as well as in the legal sense. They questioned almost univocally whether the concept of waste should any longer cover all products and substances that reach the end of their first life-cycle. Almost all of them preferred to confine this concept to materials that cannot be utilised in the circular economy, for example due to their hazardous properties. This does not imply that waste legislation and the concept of waste would become obsolete, on the contrary. They do have an essential role in the future but restricted to materials that cannot be utilised in the circular economy, as was pointed out by Chris Backes in his book “Law for Circular Economy”.
Law and values are interactive: the legislator moulds prevalent values of the society into provisions of law, while the provisions of law (re)modify our values. Provisions of law that define objectives instead of setting obligations have been described as bird song provisions by environmental law scholars. These provisions of law, it should be noted however, indicate a change in the values of the society and tend to develop into obligations over time. Restricting the concept of waste to non-utilisable materials would indicate a value change, but in no means would it be a bird song provision. In fact, it would reflect the reality as material cycles are already part of the present rather than a vision of future.
The very question of end of waste was regarded as one of the major hurdles for circular economy businesses according to the panellists. The process of end-of-waste decision-making is regarded bureaucratic. It also reflects the outdated linear economy understanding of waste and fear of its improper management. As the material demand increases and the volume of critical raw materials diminishes, the focus of the legislator should be on how to maximise the return of waste-based materials into circulation while ensuring the safety of the waste-based materials. To circular economy businesses the key issue is the legal certainty and uniform interpretations in this decision-making.
The strictly separated legislation on waste and non-waste was rational in the linear economy but fits poorly in the circular one. The waste legislation fails to provide adequate basis for commodification of waste-based materials and hampers their utilisation as products. For example, no accurate data on chemicals is collected of waste, but such information would be vital to ensure the safety of waste-based products.
The demarcation between waste and non-waste has been an on-going debate in the Court of Justice of the European Union. To such an extent, that it has concocted one of the largest case-law on a single subject! Despite redefinition of the European legislation, the case-law on the subject continues to pile up. CICAT2025 researchers Topi Turunen and Joonas Alaranta are currently writing scientific papers on this case-law and the problematic interface between the realms of waste and non-waste legislation.