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434 MINNESOTA JOURNAL OF INT’L LAW [Vol. 18:2 manufacturers to pay all or some of the costs of disposal of the product. 17 Second, physical responsibility forces manufacturers to take physical possession of end-of-life products. 18 Third, information responsibility encompasses such acts as labeling products to ease later waste management. 19 Lastly, liability may be imposed for environmental damage and clean-up efforts following improper disposal of the product in question. 20 These different forms of responsibility can be further categorized into a collective duty (where all members of a manufacturing class share responsibility), or individual duty (where each manufacturer is only responsible for the product it produces). 21 One of the earliest and most important implementations of EPR took place in Germany in 1991. ‘Verpackungsverordnung’ 22 created fixed obligatory rates for the recycling of waste packaging, and imposed physical and collective take-back obligations for producers. 23 In response to concerns voiced by producers, France created its “eco-packaging model,” in which local authorities remained primarily responsible for waste collection, “green dot” fees capped at a few cents were applied to packaging, and financial obligations were only imposed for the extra cost of creating collection systems. 24 Collection for these systems could be achieved either by eco-bodies or Producer Responsibility Organizations (PROs), private, semi-private, or government-created entities which would assume partial or complete responsibility on behalf of the producer. 25 While Europe may be credited with development of the EPR system, it is not alone in its implementation. Japan, for 17. Id. This is the most common form of EPR. 18. Id. These types of program face potentially exorbitant logistical challenges. 19. Id. Dissemination of critical product information could also facilitate customer informed decision making. See James Salzman, Sustainable Consumption and the Law, 27 ENVTL. L. 1243, 1263–66 (1997). 20. Sachs, supra note 16. 21. See Michael W. Toffel et al., Extended Producer Responsibility: An Evaluation Framework for Product Take-Back Policies 13–16 (Harv. Bus. Sch. Working Paper, Paper No. 09-026); see also ROSSEM ET AL., supra note 15, at vii–viii. 22. This term translates to “packaging ordinance.” Dict.cc, English-German dictionary, available at http://www.dict.cc/germanenglish/Verpackungsverordnung.html. 23. DeWulf et al., supra note 13, at 4. 24. Id. at 4–5. 25. Id. Numerous factors could affect the cost to producers of utilizing one of these systems. For example, a collective duty, where no sorting by brand name is required, may prove cheaper, but would not allow the producer to capitalize on its environmental design innovations. See generally Toffel et al., supra note 21.
2009] END-OF-LIFE VEHICLE DIRECTIVE 435 example, has adopted laws and waste management policies that adhere to the “producer pays” mentality, and have made considerable capital investments in its future success. 26 While the Federal Government of the United States imposes no takeback requirements, 27 several states, including Connecticut, Maine, Minnesota, North Carolina, Oregon, Texas, and Washington, have implemented take-back requirements for certain electronic waste, mercury switches, waste oil, lead acid batteries, and tires. 28 Even China has a limited form of EPR, albeit voluntary. 29 B. THE END OF LIFE VEHICLES DIRECTIVE 30 It has been estimated that there are 600 million cars in the world, with 49,886,549 being produced in 2006 alone. 31 The median age of automobiles in the United States was 9.2 years in 2007, 32 while the average age of automobiles in Japan is only about 6.6 years. 33 In the EU, automobile ownership in the original member countries (EU-15) is rather high, and the fleet tends to be relatively new. 34 In newer Member States (EU-10), 26. See generally Yasuhiko Ogushi & Milind Kandlikar, Assessing Extended Producer Responsibility Laws in Japan, 41 ENVTL. SCI. & TECH. 4501, 4501–08 (2007). See also Toffel et al., supra note 21, at 4. 27. See Megan Short, Note, Taking Back the Trash: Comparing European Extended Producer Responsibility and Take-Back Liability to U.S. Environmental Policy and Attitudes, 37 VAND. J. TRANSNAT’L L. 1217, 1220 (2004). 28. Toffel et al., supra note 21, at 5; Andrew Bockis, Note, Do You Feel the Breeze? Why the Window of Opportunity to Enact Meaningful Mercury Switch Removal Legislation is Opening . . . and Closing, 14 PENN ST. ENVTL. L. REV. 85, 92– 106 (2005) (discussing Maine’s $3 bounty on recovered mercury switches and resulting litigation); see, e.g., WIS. STAT. ANN. § 283.25 (2008); PA. STAT. ANN. § 4000.1510 (2008); MINN. STAT. ANN. § 325E.32 (2008). Nearly every state and the District of Columbia have some type of oil recycling program. Short, supra note 277, at 1226. 29. See George Gao, China to Issue New Standards of ELV Recycling in 2008, Gasgoo.com (June 30, 2008), http://www.gasgoo.com/auto-news/6899/China-to-issuenew-standards-of-ELV-recycling-in-2008.html. 30. Council Directive 2000/53/EC, supra note 5, art. 4. 31. Worldometers, Cars Produced This Year, http://www.worldometers.info/cars/ (last visited Mar. 8, 2009). The number of cars produced in 2008 was 52,940,559. 32. Viknesh Vijayenthiran, Average Age of Cars in U.S. Increases, Motor Authority (Feb. 22, 2008), http://www.motorauthority.com/average-age-of-cars-in-usincreases.html. 33. Asia Pulse News, Japan’s Average Car Age up to Record 6.6 Years (Nov. 16, 2004), http://goliath.ecnext.com/coms2/gi_0199-2785611/JAPAN-S-AVERAGE-CAR- AGE.html. 34. Malcolm Fergusson, End of Life Vehicles (ELV) Directive: An Assessment of
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