It is widely accepted that a significant part of the waste generated by a typical office – paper, packaging, cardboard, etc. – can be recycled if it is properly segregated from other waste which is not easily recycled, such as food waste. In the large commercial office building or development with multiple tenants, this means that literally tons of waste from a single project can be diverted each year from landfills and repurposed for use as recycled copy paper and envelopes, cardboard packaging, etc. Why, then, is there no widespread activity in the commercial lease context to recycle everything that can be recycled? There are multiple explanations for this lack of effort, including these:
It’s not yet the law.
In most areas of the US, recycling remains a voluntary program, even for commercial businesses. For example, my home city of Orlando started a recycling pilot program for commercial businesses the downtown area to encourage single source recycling of typical office waste. Our landlord provides blue trash cans for recyclable waste (such as paper, packaging, and aluminum cans), and encourages their tenants to comply. A growing number of governments are enacting compulsory programs for commercial businesses, such as Arlington, Virginia’s mandatory recycling law and California’s statewide recycling law, the latter of which is on course to become law in July, 2012. Commercial leases typically require tenants to comply with applicable laws, but until there is widespread enactment of mandatory recycling laws, there will be little reason for tenants to comply with voluntary recycling programs, and landlords are largely powerless to enforce compliance in that context.
Voluntary programs are confusing at best.
Using my office as an example (where my law firm is a tenant), I have been given no less than three plastic bins for my office trash. One is for confidential documents that will be picked up for shredding; one is a blue bin with a recycle emblem on it, which was supplied by our landlord for the pilot recycling program mentioned above; and another is a black bin with a recycle sticker. While I am clear on what needs to be put in the shredding bin (confidential document drafts), I have no idea how to choose between the blue and black bins to dispose of a piece of trash. To make matters worse, the break room on our floor has two larger bins, one blue and one gray, both of which have sheets taped to them outlining (in small print that is too close to the floor to be readable) which items can be placed in them. Unfortunately, both are situated next to the sink and the microwave, and I routinely observe that the both hold similar contents – microwave packaging, coffee grounds, uneaten food and used plastic forks and spoons. All in all, there are just too many confusing choices! In that split second when employees actually do think about where to throw something away (call it the “trash disposal moment”), I believe that they are probably not thinking of the ultimate destination of that trash (landfill or recycle plant). After all, for most commercial tenants, trash is not central to their business, and they don’t think about anything other than where they can throw trash away quickly and forget about it. And if we toss it into the wrong can, even by mistake, who would ever know that it was my trash as opposed to someone elses?
- Its’ Not in the Leases.
The vast majority of commercial leases don’t require tenants to recycle as a part of the operative lease terms. But many commercial leases also permit landlords to promulgate reasonable rules which can change from time to time, which are applicable to all tenants in the building or development, and which could form the basis of a default claim if not honored. Couldn’t the landlord establish a rule requiring all tenants to recycle their office waste and default those tenants who don’t comply? Arguably, landlords could do this, but the practical reality is that landlords would not. In the race for good tenants, it seems unlikely that a landlord would even consider instituting a one-off program, or worse, defaulting a tenant for failure to comply. In any event, it has been my experience that landlords generally don’t default tenants for mere rules violations, particularly when the rent is paid on time.
Conclusion. It is this author’s opinion that recycling of office waste will not grow significantly until it is governmentally required AND there are easily understandable signals for tenants to decide what to do in their “trash disposal moment”. While we wait for laws to be enacted, couldn’t there be some simple and universally recognizable ways to help tenants make correct disposal decisions quickly, easily, and without thinking too hard? Look, for example, at Dartmouth College’s unique and visual reminder that there is very little that can’t be recycled – by replacing true waste cans with very small cans. This simple change significantly increased effective “trash disposal moments” for students and staff, and increase their recycled waste output by one-third. Can’t a few creative types in the commercial world follow Dartmouth’s lead?