How Government Building Codes and Construction Standards Discourage Recycling

Executive Summary

Why doesn't everyone use recycled materials? In many areas, recycling is a relatively new technology, and the companies that use the technology tend to be fairly small. Many people don't know about the full range of products made with recycled material, and education is costly. This is especially the case with plastics. The basic problem is one that is common to many new technologiesthe world as we know it came to be in an earlier time, before current recycling opportunities became commonplace. Where recycling technology is relatively new, it has to overcome many institutionalized barriers to change.

Part of the problem is that potential end-users rely on industry standard-setting organizations, like the American Society for Testing and Materials (ASTM) or the American Association of State Highway and Transportation Officials (AASHTO), which write standards that sometimes shut out recycled materials.

  • Plastic lumber, a promising construction material, isn't generally being purchasedin part because the ASTM has been slow in drawing up testing standards;
  • The ASTM and AASHTO haven't advanced standards for drainage pipes made of recycled PVC or HDPE, because of infighting between different industry groups.

The problem isn't that such organizations exist; these organizations serve a useful purpose in developing standards and performance tests. Rather, the problem is that when governments rely on them, the standards often become mandatory, not voluntary. Another part of the problem is that governments themselves sometimes enforce restrictive regulations that shut out recycled materials:

  • Building codes, which are generally enforced on the local level, are very conservative and make it difficult for innovative building materials to be used in construction;
  • Highway construction standards are wedded to specific materials, methods, and industrial processessometimes mandating materials (as with a recent recycled rubber mandate) and sometimes prohibiting them. This makes innovation difficult in highway technology, even when such innovation would improve the performance of roadways.

Yet another part of the problem is that government procurement agencies can inadvertently or subtly discriminate against recycled materials, through such methods as:

  • The arcane rules of government bidding processes;
  • The somewhat arbitrary distinction between pre-consumer and post-consumer recycled materials;
  • Color and thickness requirements, and other conditions that are unrelated to performance;
  • Materials requirements, for instance in the purchasing of carpets or composts.

One theme runs through this array of government practices. Governments often don't rely on measures of performance. In the past, specifying materials or methods may have been the best proxy for performance one could find; when performance is difficult to measure, "doing it the way we've always done it" may have had some justification. Whatever the explanation, it's time for governments to move toward performance standards and away from specifying particular materials.

The question "Why doesn't everyone use recycled materials" is, in a sense, as ridiculous a question as "Why doesn't everyone make things out of steel" The physics and chemistry of recycling are complicated; there are lots of different processes which have lots of different effects, and it would be dangerous to draw blanket conclusions like "We should always use recycled materials" or "We should never use recycled materials." The honest answer is to admit that optimal levels of recycled material usage will vary by situation. Unless we adopt performance standards wherever possible, we can never know what those levels are, much less reach them. Many promising products are being discriminated against today because a performance standard isn't in place.

  • Governments shouldn't always rely on industry standards. In areas like plastic lumber or drainage pipe, when the ASTM or AASHTO don't have standards for a possibly good product, it may make sense for governments to draw up their own performance standards, allowing companies to submit performance data from approved testing labs.
  • Local building code offices, highway departments, and such agencies should establish clearer and more predictable approval procedures that are more open to innovative technologies. They should rely less on materials and methods specifications, and use performance standards whenever possible.
  • Government procurement agencies should scrutinize their procurement specifications to see whether they're using irrational or non-performance-related criteria to buy the products they need. President Clinton's 1993 Executive Order on recycled procurement has reformed and will continue to reform government procurement, though it treats recycling too much as an end in itself. More should be done to require performance standards whenever possible instead of dictating what a product must be made of.

Alexander Volokh is Associate Professor of Law

This Study's Materials





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