So, when did we decide to incorporate plastic into so many products, often going so far as to replace natural products entirely with plastic ones? Even if you have the financial ability to choose natural over synthetic clothing, for example, today cotton, wool, and silk are made or treated with polymers for wrinkle-free, non-pilling, and washable garments. In short, all of us are essentially living in plastic, and often not by conscious choice. How do we escape? First, it helps to understand how we got here; then we can discuss change.
Polymers are added to make everything better, from stretchy to water and stain resistant, iron-free to wicking, bright to antimicrobial. And that is just garments. Given their light weight, our ability to specifically design performance characteristics, and their easy incorporation into manufacturing, polymers have replaced or become part of most manufactured goods, whether single-use or durable, a convenience such as polymer composite decking, or critical uses such as medicine, electronics, and more. Yet given its diversity resulting from specific design variations, plastic is not easily recoverable for reuse and recycling. Aluminum, an element, is also light, and yet despite its purity, easy recovery, and resulting inherent value, aluminum is fighting the beverage container battle against plastic.
We may be tempted to think that consumers can save us from plastic by just choosing alternative products, but probably not. Consumers purchase what they can afford, choosing from what is offered. And with this cheap plastic wave, depending on oil prices, plastic has often become the cheapest raw material, such that many truly “all natural” products are becoming more expensive and harder to find. And even if the typical consumer, financially and generally stressed as they are, manages to choose a nonplastic consumer good option, they still use plastic if they use electricity or water; drive a vehicle; eat fast food; use an iPhone, computer, ear buds, or other consumer goods or cosmetic products including wet-wipes; wear stretchy, antimicrobial, water-resistant or wicking, no-iron or other synthetic or chemically treated fabrics; walk on almost any carpeting or varnished hard wood or have walls painted with latex paint; visit the doctor; and on and on.
This broader incorporation of plastic into our lives in ways most of us fail to recognize points to an issue most of us probably also fail to appreciate: Most of the plastic pollution on the planet is from sources other than our familiar plastic consumer products and litter. Tires, coatings, and synthetic fibers contribute over four times more than litter. These products shed microplastic during use in ways invisible to us. Microplastic from tire use, called “tire shred,” is reported as the largest contributor to the planet’s microplastic problem. Rubber tires are about 30% synthetic plastic. Every time a vehicle stops, starts, and “hugs the road,” the tire releases microplastic. That is why tires become worn, and why we must replace them. The missing tire rubber in an old tire is now microplastic in our environment. Multiply all the tires we use and replace globally, and you can see how tire shred can be the number one contributor to microplastic pollution. Coatings are similar contributors, with ubiquitous use of coatings releasing microplastic as they wear. Synthetic fibers also release microplastic fibers during use. See, for example, the discussion of plastic leakage in the March 21, 2023, report by the Minderoo-Monaco Commission on Plastics and Human Health. Philip J. Landrigan et al., The Minderoo-Monaco Commission on Plastics and Human Health, 89 Annals of Global Health 1, 36 (2023) (Figure 2.6, providing leakage rates for road transport, coatings, synthetic textiles, litter, artificial turf and marine activities).
With plastic reaching so pervasively into our lives, we have to ask, do we really need this much of it? Many may assume that these synthetic polymers and goods were specifically and necessarily created for that use and there are no adequate substitutes. Certainly, there are critical polymer uses preceded by “Eureka” moments in research chemistry, such as in the medical field. In medicine, specific problems are identified and solutions sought, which solutions now include plastic nanoparticle medical therapy delivery strategies. But often, plastic uses, like McDonald’s Happy Meal toys, are merely opportunistic. Research chemists often respond to a discovery of a new material with new chemical and physical properties with, “hmmm, that’s interesting.” Later someone may exploit those properties by proposing a particular use and product with proprietary patents, clever marketing, or cheaper cost. Opportunistic plastic products created from that interesting material can end up replacing whatever material was used before, if such a product existed, with evergreening patents (tweaking a molecule to continue the patent protection life cyle). And nowhere in this process is the ultimate fate of the plastic product considered despite the recognition that the chief defining characteristic of plastic is its durability and resistance to degradation.
For example, take just one polymer in our universe of polymers: polyvinyl chloride, or PVC. We might think we have to use PVC as we currently use it, but the rest of the world does not agree. Since about 1980, PVC has been opportunistically utilized for water pipes in the United States, yet not used elsewhere around the globe, where it is generally considered an unnecessary and problematic polymer. PVC is chiefly responsible for almost an entire class (90%) of the 10,000 or so polymer additives: plasticizers (about 1,700 marketed, including endocrine-disrupting phthalates, to make the rigid PVC less rigid like polyethylene). PVC is made from the monomer vinyl chloride, also famously spilled and then burned in an open pit in East Palestine, Ohio. PVC is problematic due to the chlorine atom incorporated into the polymer matrix, and because it is so often manufactured with plasticizer additives including phthalates. Polyethylene and polypropylene are merely carbon and hydrogen, oxidizing into water and carbon dioxide if allowed to oxidize completely. Comparatively, upon combustion, PVC releases chlorine, hydrogen chloride, and molecules of carbon, oxygen, and hydrogen that, if not carefully controlled, can form into toxic gases.
Why do we use PVC? Did we specifically invent PVC for water pipes? No. PVC was first discovered in a chemistry lab in 1838 (see, for example, an adequate PVC summary in Wikipedia). Like so many chemical discoveries, it was not targeted for a specific use at that time. It was merely discovered and noted for its interesting properties. It was first patented in 1913, and in 1920, its water-resistant properties (made from petroleum, it is hydrophobic, like oil, a primary characteristic of synthetic polymers) were considered perfect to create water-resistant fabrics and wire insulation. In the 1950s, PVC was used more broadly in building structures. It was not until the 1980s that we began incorporating PVC into our homes, replacing galvanized steel and copper (and lead gaskets and sometimes lead pipes). New drinking water distribution systems are now replacing iron, copper, steel, and concrete with PVC. Yet, Europe uses stainless steel, and in the United States, polyethylene is approved alongside PVC as cross-linked polyethylene (PEX), which, while plastic, is halogen free. This is the same story with many other polymers and additives; we do not need all of them. Yet, the endless cycle of production and variation continues, unencumbered by externalities, such as the threat to all biological organisms through macro, micro, and nanoplastic exposure to the physical, chemical, and electrostatic properties of plastic pollution. See, e.g., Clare Watson, Nanoplastics Interfere with Developing Chicken Embryos in Terrifying Ways, Science Alert, Mar. 21, 2023.
Now, how can we use plastics more responsibly and sustainably, considering necessity, recovery, and ultimate fate? Clearly, our global relationship with plastic must change, meaning we do need international agreement regarding coordinated strategies to phase out problematic uses and materials while supporting transition to sustainable alternatives. Such approaches continue to be discussed in the ongoing negotiations toward the United Nations Environment Assembly 5.2, March 2, 2022, Resolution 5/14: To end plastic pollution with an internationally legally binding instrument by 2024 (Resolution). The second session of the Resolution’s Intergovernmental Negotiating Committee (INC-2) was held in Paris, France, from May 29 through June 2, 2023, with the next meeting, INC-3, scheduled for November 2023. For the INC meetings, nation member and stakeholder presession submissions are posted on the INC website.
The INC discussions have prioritized recognition of general chemical as well as micro and nano particle hazards; simplification to mitigate challenges arising from plastic variability; upstream regulation and transparency of manufacturing through the value chain, from oil and gas production, monomer to polymer, and final product; “polluter pays” concepts such as extended producer responsibility and taxation; significant decreases in overall production relying on product specifications to reduce variability and increase transparency with bans phasing out problematic uses, polymers, and additives, which many nations have already adopted; and ensuring incineration and pyrolysis are not relied on to support continued plastic production. Much of the discussion relies on work of the INC’s ad hoc open-ended working group (OWEG), the European Union’s European Chemicals Agency (ECHA), member nations, and the long and quite varied list of stakeholders. These stakeholders include the Minderoo-Monaco Commission referenced herein, where the Minderoo Foundation is one of Australasia’s largest philanthropies committed to driving accountability in, and responsibility for, many issues including plastic pollution. The OWEG was convened by the UNEP Executive Director to prepare for the work of the INC and supports the INC discussions with scientific summaries providing a sound foundation for nonscientific policy makers. See UN Env’t Programme, Ad Hoc Open-Ended Working Group (OEWG) to Prepare for the Intergovernmental Negotiating Committee on Plastic Pollution (2022). To be considered in the INC discussions, the global regional groups, including the African, Asia-Pacific states, European Union, and others, and individual member states provided submissions regarding their positions. Submissions have also been submitted by major groups and stakeholders, like the International Pollutants Elimination Network (IPEN), as well as United Nations Agencies such as the United Nations International Maritime Organization and Food and Agriculture Organization. For consideration in fulfilling its advisory role to the INC, additional submissions were made to the OEWG by member states; major groups and stakeholders; secretariats of multilateral environmental agreements such as the Basel, Rotterdam, and Stockholm Conventions, Minamata on Mercury and Montreal Protocol for ozone depleting substances; United Nations agencies; and intergovernmental organizations such as the Organization for Economic Co-Operation and Development (OECD).
The submission by the United States (Feb. 13, 2023) “envisions an ambitious, innovative, and country-driven instrument” resulting in “meaningful reductions of plastic pollution” through “legally binding obligations, commitments, and voluntary approaches.” The United States proposes potential elements including obligations, commitments, and voluntary approaches; national action plans; national reporting; science, technology, and innovation; stakeholder engagement; awareness raising, education, and exchange of information; effectiveness evaluation; means of implementation (including financial mechanism); compliance; governing body; subsidiary bodies; secretariat; and final provisions. Substantively, the United States has expressed the goal of retaining flexibility through national action plans, allowing the United States to rely on technology not universally accepted by other countries.
Considering all submissions just prior to INC-2, UNEP compiled “Potential options for elements towards an international legally binding instrument, based on a comprehensive approach that addresses the full life cycle of plastics as called for by the United Nations Environmental Assembly resolution 5/14” (Options Paper), UNEP/PP/INC.2/4. The Options Paper summarizes a sweeping set of goals and measures as possible core obligations, including phasing out and/or reducing the supply of, demand for, and use of primary plastic polymers; banning, phasing out, and/or reducing the use of problematic and avoidable plastic products, and/or production, consumption, and use of chemicals and polymers of concern; reducing microplastics; strengthening waste management; fostering design for circularity; encouraging reduce, reuse, and repair for plastic products and packaging; promoting the use of safe, sustainable alternatives and substitutes; eliminating the release of plastics to water, soil, and air; addressing existing plastic pollution (legacy plastic); facilitating a just transition, including an inclusive transition of the informal waste sector; protecting human health from the adverse effects of plastic pollution; as well as including a list of potential annexes. Strategies that might be employed in this treaty include mechanisms from other treaties such as national action plans, or Nationally Determined Contributions (NDCs) from the Paris Agreement; bans on uses, polymers, and chemicals with transition periods, from the 1987 Montreal Protocol for Ozone Depleting Substances (ODS, implemented in the United States through 40 C.F.R. part 82, Protection of Stratospheric Ozone) and the 2001 Stockholm Convention for Persistent Organic Pollutants (POPs); bans on transboundary shipments of both nonconforming waste as well as products, pursuant to the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes, amended in 2019 to list nonconforming plastic waste (implemented in the United States through 40 C.F.R. part 262, subpart H); and provisions providing for social justice including fair transitioning pursuant to the 1969 Vienna Convention on the Law of Treaties.
The transition process INC is leading to move away from our current reliance on our current universe of plastic will take time to implement through international agreements. In the interim, plastic regulatory gaps exist in the United States given our historical perspective that plastic is harmless. There have been many petitions for EPA rulemaking to address plastic. See, e.g., Ctr. for Biological Diversity 2014 Petition for Rulemaking Pursuant to Sec. 7004(A) of the Resource Conservation and Recovery Act, 42 U.S.C. § 6974(A) and Sec. 21 of the Toxic Substances Control Act, 15 U.S.C. § 2060, Concerning the Regulation of Discarded Polyvinyl Chloride and Associated Chemical Additives. These have been either long ignored or, like this petition, dismissed. See EPA Response to Petition to Classify Discarded Polyvinyl Chloride as RCRA Hazardous Waste, 88 Fed. Reg. 2019 (Feb. 13, 2023). EPA issued a National Recycling Strategy in November 2021 (Part 1) that did not specifically focus on plastic. But, in April 2023, EPA released its Part 2: The Draft National Strategy to Prevent Plastic Pollution, EPA 530-R-23-006 (Draft Plastics Strategy). The Draft Plastics Strategy proposes voluntary approaches to reduce pollution during plastic production, improve post-use materials management, prevent trash and micro/nanoplastic from entering waterways, and remove escaped trash from the environment.
Even with this recent guidance, possibly other than potentially new TSCA proposed listings of chemical additives in plastic given pyrolysis to produce fuels, there is no specific federal regulatory oversight regarding plastic production rates (the range of polymers or additives utilized in plastic products), no matter how problematic; marketing of plastic or related products; or plastic waste, apart from our existing environmental statutes governing air, wastewater, and waste permitting and compliance, which are not currently utilized to their fullest extent to mitigate plastic and micro-plastic pollution. Thus, polymer producers along the value chain operating polymer compounding, extrusion, molding, casting, and forming that do not produce sufficient pollutants or waste triggering regulatory application are invisible in the regulatory context.
However, many states have adopted bans regarding single-use plastics, which may help reduce plastic pollution. See, for example, Surfider’s online compilation entitled “The Latest Plastic Bag Laws and Maps” and California’s SB 54, signed in 2022, banning a range of single-use plastics. There are litigation opportunities such as public nuisance and misrepresentation claims regarding litter and plastic product labeling using “Recyclable,” as in the Earth Island Institute v. Crystal Geyser Water Co., No. 20-CIV-01213 (Sup. Ct. San Mateo Cty. filed Feb. 26, 2020) (targeting 10 corporations including Crystal Geyser Water Company; Nestle USA, Inc.; Mars Inc.; PepsiCo Inc.; Proctor & Gamble Company; and others alleged to contribute 14 percent of ocean plastic).
There are also possible regulatory opportunities within the existing environmental statutes. One approach is to focus on pollutants emitted during manufacture, as EPA announced April 6, 2023. See EPA Announcement, New Source Performance Standards for the Synthetic Organic Chemical Manufacturing Industry (SOCMI) and National Emission Standards for Hazardous Air Pollutants for SOCMI and Group I & II Polymers and Resins Industry (to be codified at 40 C.F.R. pts. 60 and 63) (focusing on increased stringency in leak detection and repair for volatile organic compounds (VOCs) and fence line monitoring for volatile organic hazardous air pollutants (HAPs) chloroprene and ethylene oxide). But innovative measures to address more ubiquitous microplastic pollutants might also be used. For example, the Clean Water Act (CWA), 33 U.S.C. §§ 1251 et seq., could be utilized to focus on unique microplastic issues, issuing guidance clarifying that plastic litter in the watershed is a precursor for plastic particles that are total suspended solids (TSS), a CWA-regulated “conventional pollutant,” in the context of water classification and water quality goals. EPA could then enforce the CWA surface water classification and water quality goals specifically for plastic litter/particles through the Total Maximum Daily Load (TMDL) program and TMDL regulations, 30 C.F.R. part 130. EPA could also ensure states enforce municipal stormwater permits to address plastic litter and prevent microplastic loading pursuant to 42 U.S.C. § 1342(p) and NPDES permit regulations at 40 C.F.R. part 122.
Similarly, the Clean Air Act could be utilized to focus on the microplastic component of the CAA “criteria pollutant” particulate matter less than 2.5 microns (PM2.5), pursuant to 42 U.S.C. § 7408, 40 C.F.R. part 50. PM2.5 captured for criteria pollutant monitoring could be speciated to distinguish microplastic from other forms of particulate matter, like soil and carbonaceous soot from engine exhaust or condensable particulate from sulfur dioxide and nitrogen oxide. With this microplastic component considered specifically pursuant to the Clean Air Act, then approaches to mitigate this specific pollutant from known sources could be considered in implementing the National Ambient Air Quality Standards. For example, methods to mitigate PM2.5 from tire shred and synthetic fibers concentrated in land-applied wastewater treatment plant sludge released and born aloft through wind erosion could be considered, where these ongoing sources of microplastic are not currently addressed by PM2.5 mitigation methods.
More opportunities may include the Resource Conservation and Recovery Act, which could potentially be utilized to focus on plastic litter and areas of microplastic saturation as “open dumps” prohibited by RCRA, 42 U.S.C. § 6943(a), similar to EPA’s interpretation regarding coal ash. See, for example, EPA’s 2015 coal ash regulations clarifying that new open dumps are prohibited. Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities, 80 Fed. Reg. 21302, 21431 (final rule) (Apr. 17, 2015) (superseded after Congress amended the law to give EPA authority over coal ash even though it is solid, not hazardous, waste). The Toxic Substances Control Act (TSCA) could be the basis for a microplastic safety standard following the TSCA Asbestos Worker Protection Rule, 40 C.F.R. part 763, subpart G, analogizing the friability of asbestos with the microplastic shedding potential of plastic. The Environmental Justice tools, Climate and Economic Justice Screening Tool (CEJST) and EJScreen, could be updated to include new data elements such as plastic manufacturing, waste, litter (proposed in EPA’s Draft Plastic Strategy), as well as microplastic burden, into its layers of data representing overburdened communities. And California Proposition 65 could be updated to include microplastic in its list of chemicals, requiring plastic vendors to provide notice of microplastic shed potential, or prove otherwise. Of course, once consensus is reached regarding a reference dose or other “reliable toxicologically relevant metric” for microplastic (with its different shapes, sizes, and substances), as discussed by Scott Coffin in The Emergence of Microplastics from Research to Regulations, 2 Env’t Sci. Adv. 356 (2023), we will have a useful metric for human health risk supporting rulemaking pursuant to all our environmental statutes, as well as more litigation.
We tried to reinvent the world with plastic. Now, to save the world, we have to invent a world without it, or at least, a whole lot less. In any case, we will soon be compelled to reconsider our relationship with plastic.