In a roundabout attempt to boost recycling in Colorado, a proposal pending in the legislature would set up a government-nonprofit hybrid with taxing and penalizing authority – but without accountability or oversight.

Think of it as a new, offline bureaucracy. You also can think of it as a bad idea.

House Bill 1355 would establish and deputize a third party, nonprofit entity – a “producer responsibility organization” – which businesses in a narrow group of industries would be forced to join and pay taxes to in order to subsidize the recycling industry. And of course, get slapped with stiff fines if they choose not to.

The bill is short on details for how it all is supposed to work. But the gist is that it will order private businesses that make and sell packaged goods – assuming they are not among the special exempted class – to form and join a producer responsibility organization, which they will pay for. Then, the business must complete a recycling needs assessment for the state; come up with a planned proposal for recycling, and abandon its existing recycling and zero-waste programs to solely finance this new program to subsidize the state’s recycling infrastructure. 

 In a nutshell, the government can’t figure out recycling in the state, so it’s standing up a nonprofit and forcing a few industries to fund it. Which is to say, lawmakers will have to pass the bill and let the new regime sputter along for a while before anyone figures out how, or if, it functions.

What already seems clear about the proposal, though, is that it’s likely unconstitutional. It’s an attempted end run around the Taxpayer’s Bill of Rights, or TABOR, amended into the state constitution in 1992 by the state’s voters. TABOR requires a vote of the people before a new tax can be levied. The bill’s proponents claim the program does not violate the constitution because it does collect “taxes” paid to “government” but rather “dues” paid to a producer responsibility organization.

The authors of the proposal took care not to call it a fee because that would make the whole mechanism an enterprise. Following last year’s passage of Proposition 117, the proposal then would have to go to a vote of the people.

Whether fees, taxes or dues, the bill forces certain businesses to pay money to an entity that has the authority to penalize them.

Constitutional questions aside – and there’s no telling where the courts would come down on the matter – it is still a terrible idea. The proponents of the concept like to talk about “shared responsibility” for recycling, yet the bill shifts the entire burden for running recycling programs from local governments to targeted businesses. The program’s beneficiary, the recycling industry, isn’t paying a dime, it gets fully subsidized.

And the bill is so riddled with exemptions – restaurants, agriculture, marijuana, businesses selling packaging to other businesses, etc. – that the only ones left sharing any responsibility are those businesses that happen to sell packaged goods directly to customers in recyclable containers. Think breweries and wineries, for instance.

Low recycling rates are a challenge in Colorado. We get that. But trying to address the issue by imposing a convoluted shakedown of dubious legality onto businesses won’t solve it. All it will accomplish is to increase prices on groceries, beer and other industries in the bullseye. Good enough reason to toss HB 1355 into the recycling bin.

Denver Gazette editorial board