‘USING PRODUCTS IN A CLOSED LOOP SYSTEM’
WORKING SESSION AT THE INTERNATIONAL BAR ASSOCIATION SECTION ON ENERGY, ENVIRONMENT, NATURAL RESOURCES AND INFRASTRUCTURE LAW
LISBON, 9 APRIL 2018
At the International Bar Association’s (IBA) Biennial Conference of the Section on Energy, Environment, Natural Resources and Infrastructure Law (SEERIL) held on 9 April 2018 Michelle Ouellette and Glen McLeod, moderated a breakout session on the emerging new circular economy.
This session introduced the circular economy model, which is focused on using products in a closed loop system. It explored incentives and initiatives, policies and regulatory regimes that enable more sustainable production practices and promote sustainable consumption. The panel members were from diverse backgrounds, including the private business sector, government, non-for-profit organisations and international organisations.
Carrie Snyder, Founder of CSS Consulting and instructor at Harvard Extension School, Virginia Beach, Virginia introduced the concept of the circular economy and described how a closed system operates. A closed system exists where a product design does not require new material inputs and the product can be re-used, recycled or composted at its end-of-life. The idea is to design waste out of the system, produce repairable products and sell services designed to keep products in repair.
Dr Kieren Mayers, Director of Environmental and Technical Compliance for Sony Interactive Entertainment, London considered how the concept of the circular economy has become more mainstream and highlighted the implementation of legislation concerning the lifecycle of electronic products in the European Union. Dr Mayers noted that producer responsibility for the ‘take back’ of products at the end-of-life stage has been implemented, though he emphasised that it is important to ensure the steps which are taken for end-of-life management are practical and deliver the intended results. This is particularly important in the development of harmonised product standards and regulations
Professor Christian Piska of the University of Vienna, Vienna commented that the broadly understood concept of waste runs counter to the goals of resource conservation and waste prevention. Professor Piska also noted the potential limits of the circular economy, drawing upon the example of used cars. Assets should be enhanced to last longer, the emphasis being on a service economy. However, it is not in the manufacturer’s interest to prolong the life of a vehicle. He considered that the prolonged use or reuse of an item is the most effective method for conserving resources. In relation to measures taken by the European Union, Professor Piska noted the possibility for overregulation and the potential for unforeseen results to occur. Smart regulation, which generally means as little as possible, is his preferred approach.
Harry Verhaar, Head of Global Public & Governance Affairs for Philips Lighting focused on what is required to progress towards a circular economy. Mr Verhaar highlighted the requirement for comprehensive legislative and regulatory regimes and raised questions about the potential limits posed by existing infrastructure. In general, the focus should be on prolonging the life of infrastructure. Recycling should not be an end in itself because of its use of energy. We need to rethink production, so that the need to recycle is avoided. Mr Verhaar noted the experience of the lighting sector and the transition from inefficient analogue incandescent light-bulbs towards highly efficient digital LED lights, which last longer, use less energy and reduce the need for recycling. The discussion focussed on why this transition occurred and what the experience of lighting sector might mean for other sectors.
Mr José Eduardo Martins, Partner at Abreu Advogados, Lisbon considered how the European Union produces environmental legislation and the implications of this legislation for the circular economy concept. Mr Martins cited potential risks, namely, that legislation may simply be symbolic or ineffective in trying to address environmental concerns.
A perspective on the circular economy in North America was brought by Jonathon Cocker, Partner at Baker McKenzie, Toronto, Ontario. Mr Cocker observed that there is a migration away from government run waste diversion programs towards the private sector. He noted, for example, the establishment of producer responsibility organisations (PRO), which monitor producer responsibility obligations, held by private brand owners and importers. The PROs are positioned to be central in waste management innovation. However, Mr Cocker noted limitations, including complex legal issues among PROs and the potential impact on other industries and the broader market.
Dr Jordie Bruno, CEO and Chairman of the Board of Amphos 21 Group, Barcelona considered the practical implications of the circular economy. Namely, that the laws of thermodynamics and technical limits on resource recapture make it impossible to achieve a 100 per cent closed loop economy. This has ramifications for the effectiveness of eco efficiency and zero waste initiatives. These external circumstances should be taken into account when establishing the limits and conditions in which a circular economy might work from the economic, social and legal standpoints. It is important to keep products and ultimately waste, as close as possible to the source of the product
Overall, the session provided a range of comprehensive and well considered insights into the circular economy concept and the future of waste management. It is clear that the circular economy concept provides a number of innovative options, though it will be necessary to approach future projects with an open mind and be resistant to creating unrealistic expectations about the short-term outcomes of circular economy models.
 Partner, Best Best & Krieger, Riverside, California; Chair of the Environment Health and Safety Committee of the IBA
 Principal, Glen McLeod Legal Perth, Western Australia; Council Member, SEERIL