Judge Overturns New York City Ban on Plastic Foam Containers

September 22, 2015 Updated: September 23, 2015

NEW YORK—A state judge has overturned New York City’s ban on plastic foam containers, finding the nearly 30,000 tons of dirty meat trays and to-go cups now sent to landfills can be recycled in a cost-effective way, according to a decision made public Tuesday.

The ban went into effect July 1 after lawmakers voted in 2013 to approve it unless a yearlong inquiry found the foam could be effectively recycled. An industry group of manufacturers, recyclers, and restaurant owners then sued, arguing that the ban was based on politics, not policy, and that recycling was feasible.

The environmental initiative was spearheaded by former Mayor Michael Bloomberg, an independent, and supported by current Mayor Bill de Blasio, a Democrat.

But state Supreme Court Judge Margaret Chin ruled that Department of Sanitation Commissioner Katheryn Garcia didn’t properly take into account industry estimates of the market and recycling opportunities generated during the yearlong review period when she decided that plastic foam couldn’t be recycled economically and in an environmentally friendly way.

Garcia didn’t “clearly state the basis of her conclusions when the evidence contrary to her findings were clearly before her,” Chin wrote, noting industry estimates that 21 companies would buy used containers from the city. She also noted the city would save $400,000 annually if 40 percent of its wasted plastic foam wasn’t sent to landfills, though as much as 75 percent could be recycled following machinery improvements.

The takeout containers popular with street vendors for keeping food warm are actually made from a material called expanded polystyrene foam. Although commonly referred to as Styrofoam, that Dow Chemical Co. brand isn’t used as a food container, the company has said.

Prohibitions on the product exist in other cities across the country, such as San Francisco, Seattle, and Portland, Oregon. The ban had made New York the largest city in the country to prohibit plastic foam, which environmentalists said clogs up landfills.

The industry has had decades to create a viable foam recycling market and it has not done so. There is no way to effectively recycle it.
— Cas Holloway, former deputy mayor

Mayoral spokeswoman Ishanee Parikh said de Blasio administration officials disagreed with the ruling and were reviewing options to keep the ban in place.

“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,” she said.

Cas Holloway, a former Bloomberg deputy mayor who led that administration’s efforts to ban plastic foam, called Chin’s decision “clearly wrong.”

“The industry has had decades to create a viable foam recycling market and it has not done so,” he said. “There is no way to effectively recycle it.”

Randy Mastro, a former deputy mayor under Republican Rudolph Giuliani who represented the industry groups that challenged the ban, said Chin’s decision clears the way for a new citywide recycling plan for egg cartons and other plastic foam products.

“That’s a ‘win-win’ for everybody,” he said.