June 01, 2019

Fishing for Plastic: EU Targets Marine Pollution

Madeline June Kass

Detailing the dire consequences of plastic pollution and noting China’s 2017 decision to stop importing plastic waste from other countries, Professor Sarah Morath observed that “[t]here has never been a more opportune time to consider our plastics problem.” Sarah J. Morath, Our Plastic Problem, 33 Nat. Res. & Env’t 45, 49 (Spring 2019). In line with Professor Morath’s noted window of opportunity and recognizing the grave implications of plastics for the ocean environment, coastal biodiversity, and human health, the European Union (EU) is moving ahead with a robust effort to address plastic marine litter.

Why now? As was starkly observed in a National Geographic article title: “We Made Plastic. We Depend on It. Now We’re Drowning in It.” Laura Parker, Planet or Plastic, National Geographic, June 2018. Plastics increasingly are found in every marine area imaginable—frozen in Artic sea ice, stranded on remote island beaches, sunken along the deepest and loneliest places of the ocean floor, and agonizingly obstructing the insides and mercilessly entangling the bodies of hundreds of marine life species. Articles and reports citing these dire results of plastics pollution abound. For instance, one author reports an estimate that at least one trillion pieces of plastic have been “frozen into the Arctic ice over past decades.” Matthew Taylor, Record Levels of Plastic Discovered in Arctic Sea Ice, The Guardian, Apr. 24, 2018. Another study estimates that there are “413.6 million pieces of debris” distributed across remote islands a thousand miles off the coast of Australia, with plastic bottle caps, lids, and drinking straws among the most commonly identifiable items, and literally submits that “there are now more pieces of plastic in the ocean than there are stars in the Milky Way.” J.L. Lavers, et al., Significant Plastic Accumulation on the Cocos (Keeling) Islands, Australia, 9(1) Scientific Reports 7102 (May 2019). A science reporter notes that in “the Mariana Trench, the lowest point in any ocean, every tiny animal tested had plastic pollution hiding in its gut.” Ed Yong, A Troubling Discovery in the Deepest Ocean Trenches, The Atlantic, Feb. 27, 2019. Another report observes that “from getting stuck in nets to eating plastic that they think is food, creatures worldwide are dying from material we made.” Natasha Daly, For Animals, Plastic Is Turning the Ocean into a Minefield, National Geographic, June 2018. One article even makes the disquieting prediction that “there will be more plastic than fish by weight in the world’s oceans by 2050.” Bianca Britton, Ban on Single-Use Plastic Items Approved by European Parliament, CNN, Mar. 28, 2019.

In the EU, plastics make up over 80 percent of marine litter on European beaches, with an estimated cost to the EU economy of €259 to €695 million (approximately $289 to $776 million) per year. See European Parliament Research Service, Briefing EU Legislation in Progress: Single-Use Plastics and Fishing Gear—Reducing Marine Litter (Nov. 28, 2018) (EU Briefing on Plastics). These cost estimates reflect resource degradation impacts on recreation, tourism, and fisheries, but are believed to represent only a small portion of actual costs. See European Parliament Research Service, Briefing Oceans Governance and Blue Growth 3 (March 2019). Single-use plastics (49 percent) and plastic fishing gear (27 percent) together account for just over three-quarters of all EU marine litter. Id. at 7. By way of comparison, China and Indonesia top the list of plastic marine polluters by total waste generation (bottles, bags, and other plastic items), the United States ranks 20th, and the 23 coastal member states of the EU collectively rank 18th. See EU Briefing on Plastics at 3, n.3.

In March 2019, referencing similar statistics and concerns, the European Parliament overwhelmingly approved a legislative proposal by the European Commission to regulate common single-use plastic products. European Parliament Legislative Resolution of 27 March 2019 on the Proposal for a Directive of the European Parliament and of the Council on the Reduction of the Impact of Certain Plastic Products on the Environment (COM(2018)0340 – C8-0218/2018 – 2018/0172(COD)) (2019) (Legislative Resolution). To take effect, the Council of the European Union (Council) must finalize the Legislative Resolution adopted by the European Parliament. Approval by the Council is expected by summer 2019.

The proposal takes the form of an EU directive. Directives are legislative acts that set goals that EU member states (the nations that make up the European Union) must achieve. Directives are not directly binding across the EU until each member state transposes the directive into national law. Accordingly, following Council approval, member states will have two years to transpose the legislation into national law, at which point each nation will become primarily responsible for the directive’s implementation and enforcement.

The Legislative Resolution identifies two primary objectives. One is “to prevent and reduce the impact of certain plastic products on the environment, in particular the aquatic environment, and on human health.” The other is “to promote the transition to a circular economy with innovative and sustainable business models, products and materials.” See Legislative Resolution Art. 1. If approved by the Council, the legislation (referred to as the EU Plastics Directive in this article) will allocate responsibility among governmental authorities, plastic product producers, and consumers for preventing and reducing plastics pollution. The measure complements existing EU efforts on plastics. One such effort is a 2015 Directive on Plastic Bags (Directive 2015/720) that restricts and regulates light weight plastic bags in the EU. Another is a 2018 European Plastics Strategy, which envisions having all plastic packaging placed on the EU market as reusable or recyclable by 2030. The EU Plastics Directive also builds on the 2015 EU Circular Economy Action Plan (COM/2015/0614) and fits within two major EU framework laws, the EU Waste Framework (Directive 2008/98/EC) and the EU Marine Strategy Framework Directive (Directive 2008/56/EC).

The EU Plastics Directive will adopt a mix of prescriptive, market, and informational provisions to address plastics commonly found in the marine environment. Recognizing that both the usefulness and harm caused by plastics often depend on the design and role of plastics in the economy, the law pinpoints “single-use” plastics as a particular threat to the environment. The directive defines a “single-use plastic product” as one “made wholly or partly from plastic and that is not conceived, designed or placed on the market to accomplish, within its life span, multiple trips or rotations by being returned to a produced for refill or reused for the same purpose for which it was conceived.” Legislative Resolution, Art. 3(2). In other words, it covers plastics intended to be used just once, for a short time, and then disposed of without re-use or cost-effective recycling.

On the prescriptive side, the EU Plastics Directive will require all member states to ban single-use plastics commonly found on European beaches, including single-use plastic straws, plates, forks, spoons, knives, chopsticks, beverage stirrers, cotton swab sticks, balloon sticks, and fast food and beverage containers made of expanded polystyrene. See Legislative Resolution, Art. 5 & Annex Part B. These “top 10 listed” single-use plastics would be phased out by 2021. The European Parliament is banning these items to promote use of readily available alternatives and to encourage innovation of more sustainable and reusable substitution materials.

The law also takes aim at single-use plastic beverage bottles. The EU Plastics Directive will require each member state to adopt measures to increase collection of used plastic beverage containers for recycling (to 77 percent of those placed on the market by 2025, and to 90 percent by 2029), to bump up the recycled content in regulated plastic beverage containers (to at least 25 percent by 2025 and to 30 percent by 2030), and to ensure that plastic caps and lids remain attached to single-use plastic beverage containers. See Legislative Resolution, Art. 6, 9 & Annex Parts C & F.

Additionally, the EU Plastics Directive will call on member states to achieve, within two years, an “ambitious and sustained” and a “measurable qualitative” reduction in the consumption of specified single-use beverage cups, beverage cup covers and lids, and fast food containers. See Legislative Resolution, Art. 4 & Annex Part A. Although member states may choose the necessary measures (i.e., the regulatory means to achieve the mandated reduction ends), the directive offers as options point-of-sale measures enhancing the availability of reusable cups and food containers and imposing consumer fees for single-use plastic items.

The EU Plastics Directive also contains informational measures intended to educate consumers and raise public awareness about single-use plastic waste. Specifically, member states will be tasked with ensuring that single-use plastic products (such as beverage cups, wet wipes, tampon applicators, and tobacco filters) placed on the EU market bear conspicuous labeling information about the product’s plastic content, its adverse impacts on the environment, and appropriate discard options. See Legislative Resolution, Art. 7 & Annex Part D.

Beyond traditional prescriptive and informational measures, the EU Plastics Directive also will impose post-consumer use responsibilities on several categories of single-use plastics producers. For example, tobacco companies will be required to cover the cost of public collection of plastic cigarette filters, which make up “the second most found single-use plastic items on beaches in the [European] Union.” Legislative Resolution, ¶ 16. Tobacco companies will additionally be responsible for the related costs of data gathering, reporting, and awareness raising measures. See id. at Art. 8(3) & Annex Part E, Sec. III. Similarly, fishing gear manufacturers (not fishermen) will be required to cover the costs of retrieval, collection, transport, and treatment of fishing gear containing plastic. See id., Arts. 8(7)–(9). These “extended producer responsibility” measures aim to address the environmental externalities associated with single-use plastic products for which no more sustainable alternatives are readily available. In general, measures extending producer responsibility to post-consumer product recovery seek to internalize environmental externalities by making “polluters pay” for the environmental harms they cause. Ideally, such measures will create incentives for producers to design and produce products that are more reusable, recyclable, and repairable—and thus more sustainable.

With this effort to address marine plastics, the EU again takes the lead over the United States and joins with concerned European nations, individual U.S. states, and many local communities, private institutions, and environmental advocates to address an urgent and calamitous environmental problem.

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Madeline June Kass

Professor Kass is a Fulbright Scholar at the College of Europe in Brugge, Belgium; Visiting Scholar at the Seattle University School of Law in Seattle, Washington; Professor Emeritus at Thomas Jefferson School of Law in San Diego, California; and a member of the editorial board of Natural Resources & Environment. She may be reached at mkass@tjsl.edu.