Plastic pollution is a growing problem without an easy solution. Given that legislative action on plastic pollution has stalled, advocates are using the judicial system to hold polluters accountable. This article evaluates recent litigation involving plastic pollution. Like climate change litigation, the claims involving plastic pollution are novel and the defendants diverse. Some plastic pollution claims are brought under well-established laws, like the Clean Water Act (CWA), while others include claims of first impression (e.g., public nuisance as applied to bottle manufacturers). The defendants—plastic producers, plastic pellet transporters, government agencies, and major bottling companies—are as varied as the claims. But unlike climate change litigation, the results so far tip ever so slightly in favor of the plaintiff-advocates. Advocates have secured large settlements, claims have been allowed to proceed against polluters, and permits have been suspended. These tangible results suggest that plastic pollution litigation, which is in its infancy, might offer a promising avenue for addressing our plastic problem.
Although petroleum-based plastics have been around for more than 100 years, the concept of single-use plastics did not develop until the mid-1970s when grocery stores started providing plastic bags to customers. Single-use plastic bottles, food containers, and straws quickly followed. While these larger plastic objects can break down into microplastics—plastic particles smaller than 5 mm—plastic never completely degrades and can persist in the environment for hundreds of years.
Plastic pollution’s ubiquity and harm are extensively documented. Plastic has been found at the summit of Mount Everest and the depths of the Mariana Trench. Microplastics have been detected in rainwater, bottled water, table salt, soil, seafood, and recently placenta. Damian Carrington, Microplastics Revealed in the Placentas of Unborn Babies, The Guardian (Dec. 20, 2020). While plastic’s impact on humans is not fully understood, its harm to marine animals, sea turtles, sea birds, and wildlife is evident. These creatures often ingest, get tangled in, or are impaled by discarded plastic. But marine creatures are not the only vulnerable beings. Plastic also makes its way into fields and deserts, where it is consumed by unsuspecting cows and camels. The aesthetic impact of plastic on beaches, the countryside, and our neighborhoods is apparent.
While the sight of plastic on beaches and the images of entangled birds are unsettling, plastic’s harm extends beyond what we can see with the naked eye. Air and water quality are impacted across the plastic supply chain, from production to disposal. Research shows that persistent organic pollutants can sorb to microplastics, causing great risk to those creatures that ingest the plastic. And plastic that is not recycled properly is often incinerated, causing harmful chemicals to be released into the air. Accidental spills and improper disposal only compound the issue. These conditions have led scientists to declare plastic a chemical hazard that is turning the oceans into a toxic soup.
When modern environmental law first took shape during the 1970s, the harms associated with plastic in the environment were relatively unknown. A Google Scholar search reveals that the word “microplastics” appears in just 56 articles published between 1970 and 1980. Records show, however, that in the early 1990s, the Environmental Protection Agency (EPA) was concerned with tiny microplastic pellets, or nurdles, that are melted to make plastic products. Env’t Prot. Agency, Plastic Pellets in the Aquatic Environment: Sources and Recommendations: Final Report (1992). Plastic producers, however, were able to avoid additional regulation by proposing a self-monitored program called Operation Clean Sweep, which continues today. Id. There are also reports that in the 1990s, plastic manufacturers including bottling companies, promoted recycling, which has largely been unsuccessful, to continue the unfettered use of plastic. Laura Sullivan, Plastic Wars: Industry Spent Millions Selling Recycling—To Sell More Plastic, NPR (Mar. 31, 2020).
Apart from the Microbead-Free Waters Act of 2016, which banned microbeads in cosmetic products, as of 2020 no legislation specifically targets the problem of plastic pollution. 21 U.S.C. § 331(d)(2)(A) (2018). In 2020, Representatives Tom Udall and Alan Lowenthal introduced the Break Free from Plastic Pollution Act. H.R. 5845. This comprehensive law is full of creative methods for addressing plastic pollution including bans, taxes, and extended producer responsibility provisions. But this legislation has not moved forward. Given that there has been no new legislative action on plastic pollution, and that industry has done an inadequate job at keeping plastic out of the environment, advocates are turning to litigation to hold a variety of defendants—producers, transporters, manufacturers, and government officials—accountable for the harms associated with plastic.
San Antonio Bay Estuarine Waterkeeper v. Formosa Plastics Corp. Perhaps the most encouraging, and at the same time troubling, case involves the citizen suit provision of the CWA. 33 U.S.C § 1365 (2018). In San Antonio Bay Estuarine Waterkeeper v. Formosa Plastics Corp., Waterkeeper, a nonprofit organization that monitors the water quality of the bay, along with local environmental activists including Diane Wilson, brought an action against Formosa Plastics Corp. (Formosa), a plastic pellet manufacturer. No. 6:17-CV-0047, 2019 WL 2716544 (S.D. Tex. June 27, 2019). Waterkeeper argued that Formosa was violating its Texas Pollutant Discharge Elimination System (TPDES) permit, and, therefore, violating the CWA because it was exceeding its discharge limits for nurdles. Id. at *2. At a bench trial, Waterkeeper presented data showing compliance violations from January 2016 through March 2019. Id. at *3–5. Relying on the extensive evidence gathered by Ms. Wilson and other citizen-plaintiffs, U.S. District Court Judge Hoyt found that Formosa’s source controls, remediation techniques, manual removal efforts, and reliance on contractors to clean up plastic pellets were all ineffective and inadequate. Id. at *14. So egregious was Formosa’s conduct (Formosa had violated its permit for more than 1,000 days) that Judge Hoyt called Formosa a “serial offender” of the CWA. Id. at *8. In October 2019, Formosa agreed to a $50 million settlement agreement, the largest citizen suit settlement under the Clean Water Act to date. Formosa Plastics Agrees to Pay $50 Million Settlement for Polluting Texas Waterways, Plastic Pollution Coal. (Oct. 15, 2019).
Although Formosa was a member of Operation Clean Sweep—an industry-led effort to address plastic pellet pollution—internal emails showed that Formosa knew about the unlawful discharges for at least two years. In 2020, NPR reported that Formosa employees were given advance notice of state and federal inspections so that the plant could clean its discharge outfalls to meet permit standards and alter its record-keeping to remain in compliance. Laura Sullivan, Big Oil Evaded Regulation and Plastic Pellets Kept Spilling, NPR (Dec. 22, 2020). This kind of cooperative relationship allowed Formosa to avoid fines for its CWA violations for decades. Id.
While this case illustrates an industry’s inability to self-monitor for plastic pellet pollution, it also highlights the importance of everyday citizens in the fight against plastic pollution. Only when Diane Wilson and a group of concerned individuals sued was Formosa held accountable for its conduct. As Josh Kratka, senior attorney at the National Law Center, stated, “This case is a shining example of the crucial role that citizen enforcement suits play in seeing that our cornerstone environmental laws, like the Clean Water Act, actually fulfill their purpose of protecting our environment and public health.” Formosa Plastics Agrees to Pay $50 Million, supra.
Charleston Waterkeeper v. Frontier Logistics L.P. Shortly after the Formosa settlement, Charleston Waterkeeper—an environmental nonprofit located in South Carolina—and The Southern Environmental Law Center (SELC) filed a lawsuit against the plastic resin packaging company Frontier Logistics, L.P. Using the citizen suit enforcement provisions of the Resources Conservation and Recovery Act (RCRA), and the CWA, plaintiffs claimed Frontier violated the law by releasing plastic pellets into the Cooper River, Charleston Harbor, and other Charleston waterways. Complaint for Injunctive & Declaratory Relief, Charleston Waterkeeper v. Frontier Logistics, L.P., No. 20-cv-01089-DCN (D.S.C. Mar. 18, 2020). Since July 2019, Waterkeeper had collected more than 14,000 nurdles. Id. § 2. In September 2020, Judge David C. Norton ruled in the plaintiffs’ favor and denied Frontier’s motions for judgment on the pleadings and to strike and denied the South Carolina State Ports Authority’s third-party motion to quash plaintiffs’ subpoena. Charleston Waterkeeper v. Frontier Logistics, No. 2:20-cv-1089-DCN, 2020 WL 5629717 (D.S.C. Sept. 21, 2020). In denying the judgment on the pleadings, the court concluded that the plaintiffs could maintain simultaneous claims under both RCRA and CWA. While a single pellet may not constitute “solid waste” for purposes of RCRA and a “point source discharge” for purposes of CWA, the court recognized that the pellet packaging company could be both spilling pellets on land, making it subject to RCRA, and discharging pellets into water systems, making it subject to the CWA. Id. at *13.
Plaintiffs believed the nurdle spills and discharges were routine and collected samples and kept detailed records of plastics in the local Charleston waters. Andrew Wunderly, a member of the Charleston Waterkeeper, remarked: “We find pellets everywhere we look . . . [a]nd at the sites we sample week after week, we continue to find consistently high numbers of pellets.” Steve Toloken, Conservationists Plan Pellet Pollution Lawsuit in South Carolina, on Heels of Texas Case, Plastic News (Nov. 1, 2019). Frontier, like Formosa, is a member of Operation Clean Sweep and denied responsibility for the pellets found in Charleston Harbor.
In March 2021, Frontier agreed to settle the lawsuit for $1.2 million. The court is likely to approve the settlement. Advocates see the citizen suit litigation involving Formosa and Frontier as a way to not only stop plastic pellet pollution and provide compensation for the harm caused but as also serving as a precautionary tale for the rest of the industry.
Center for Biological Diversity v. U.S. Army Corps of Engineers. Another success, although a potentially temporary one, occurred when the U.S. Army Corps of Engineers (Corps) suspended a petrochemical permit issued to the Formosa Plastics plant in Louisiana. Once completed, the Formosa project, estimated at $9.4 billion, would include 10 chemical plants and four other facilities in St. James Parish, Louisiana—an area commonly referred to as Cancer Alley because of the high occurrence of cancer in residents. Antonia Juhasz, Louisiana’s “Cancer Alle”’ Is Getting Even More Toxic—But Residents Are Fighting Back, Rolling Stone (Oct. 30, 2019). On January 15, 2020, the Center for Biological Diversity (CBD), a national nonprofit committed to the conservation of biodiversity, native species, and ecosystems, and local organizations including Healthy Gulf, Louisiana Bucket Brigade, and Rise St. James filed suit in the U.S. District Court for the District of Columbia against the Corps arguing that Formosa’s permit violates the CWA, the National Environmental Protection Act, the Rivers and Harbors Act, and the National Historic Preservation Act. Complaint at 4–5, Ctr. for Biological Diversity v. U.S. Army Corps of Engineers, No. 20-103, 2021 WL 14929 (D.D.C. 2021). Before the court could rule on the merits of the case or any motion, the Corps suspended the permit.
Although the specific reasons for the Corps decision are unknown, there was significant opposition to this project from the local community of St. James Parish. While the governor of Louisiana promoted the project as one of economic development and job creation, the plaintiffs raised environmental justice concerns. The complex would be in a community that is 90 percent Black, according to Julie Teels Simmonds from the CBD. Sabrina Canfield, Feds Reconsidering Permit for Massive Plastics Plant in Louisiana, Courthouse News Serv. (Nov. 5, 2020). In response to the Corps actions, Simmonds stated, “There is no way to defend the damage Formosa Plastics would do to St. James Parish and our oceans. We hope [the permit suspension] is the beginning of the end for this terrible project.” Id.
In addition to the concerns raised by CBD, the state court in Louisiana recognized the very real impacts this project would have on the air quality of St. James Parish. In a hearing for the project’s state air pollution permits, Nineteenth Judicial District Judge Trudy White informed the parties that environmental racism is real and prevalent, and ordered the Corps to perform an environmental justice analysis of the impacts on the community from the air pollution from the plant. David Mitchell, Judge Delays Crucial Permit for Formosa Plastic Plant; Requires Deeper Analysis of Racial Impacts, The Advocate (Nov. 18, 2020). While the outcome of Formosa’s project is unknown, this case highlights a court’s recognition of environmental racism and the disproportionate impact of the petrochemical plant on the residents of St. James Parish.
Center for Biological Diversity v. EPA. Plastic producers are not the only actors drawing the public’s ire. EPA too has been subject to criticism for its actions. Across the Pacific Ocean, litigation brought by environmental groups in Hawaii resulted in the EPA withdrawing its prior approval of Hawaii’s impaired water list and adding two of Hawaii’s waters that were impacted by plastic pollution. In this citizen suit, the CBD sued the EPA under section 303(d) of the CWA, which requires states to identify water bodies that fail to meet the state’s water quality standards and list those bodies as “impaired” waters. According to CBD’s complaint, EPA violated section 303(d) of the CWA when in 2018 it approved Hawaii’s “deficient” list of impaired waters and ignored evidence of plastic pollution in Hawaii’s water bodies. Complaint at 21, Ctr. for Biological Diversity v. U.S. EPA, No. 1:20-cv-00056 (D. Haw. Feb. 2, 2020). Under the CWA, Hawaii was only required to develop total maximum daily load (TMDL) plans to improve water quality standards for those waters listed as “impaired.” 40 C.F.R. § 130.7(d)(2). TMDL plans ensure that impaired waters will attain applicable water quality standards, which are incorporated into water quality management plans. Id. Because waters impacted by plastic pollution were absent from the EPA-approved list, the waters were not designated as impaired and no plans for improving the water quality for those waters were required.
CBD challenged EPA’s approval of Hawaii’s listed waters, alleging that both the EPA and Hawaii failed to account for widespread plastic pollution, which posed significant threats to marine organisms and coastal communities. CBD’s complaint alleged that high concentrations of microplastics were contaminating and polluting Hawaii’s waters and that the EPA and the state of Hawaii did not adequately evaluate all available data on plastic pollution, including data directly submitted by the CBD. CBD asked the court for an order to compel the EPA to disapprove Hawaii’s impaired water list, or, in the alternative, an order to vacate and remand the EPA’s approvals, sending them back to the agency for a new determination that complies with the CWA and Administrative Procedure Act.
As a result of CBD’s action, EPA voluntarily withdrew its prior approval of Hawaii’s list of 2018 impaired waters and ordered Hawaii’s Department of Health to reexamine the evidence of plastic pollution and submit a new list. Notice Regarding Timing of Forthcoming EPA Action, Ctr. for Biological Diversity, No. 1:20-cv-00056 (D. Haw. June 25, 2020). In July 2020, after reviewing Hawaii’s new submission, EPA concluded that waters around two of Hawaii’s beaches were impaired due to plastic pollution: Hawaii’s Kamilo Beach and Tern Island. Joint Status Rep. at 2, Ctr. for Biological Diversity, No. 1:20-cv-00056, (D. Haw. July 17, 2020). These waters were added to Hawaii’s impaired waters list and incorporated into the state’s water quality management plans. This listing will help restore the water quality of the area and support the overall goal of the CWA. 33 U.S.C. § 1251(a).
Although environmental groups are “encouraged that the EPA is taking steps to address plastic pollution in the ocean and on our beaches, as a major cause of water quality impairment” (Press Release, Ctr. for Biological Diversity, EPA: Waters Around Two Hawaii Beaches Impaired by Plastic Pollution (July 16, 2020)), only two of the 17 waters that CBD submitted as contaminated by plastic pollution were found to be impaired. Furthermore, Hawaii is required to submit its impaired waters list for EPA approval every two years, so designating waters polluted with plastics as impaired will likely be an ongoing battle for environmental advocates. 40 C.F.R. § 130.7(d)(1). Rafael Bergstrom, executive director of Sustainable Coastlines Hawaii, acknowledged this reality, expressing that “while we appreciate this monumental step with the listing of these two sites as impaired, there is immense work still to be done.” Press Release, Ctr. for Biological Diversity, Feds Overrule State Officials, Order Hawaii to Protect Kamilo Beach, Tern Island (July 16, 2020). That said, this suit illustrates another way to use the Act to address plastic pollution—classifying waters as impaired to establish TMDL plans.
Earth Island Institute v. Crystal Geyser Water Company. While the individual and localized “wins” described above are worth celebrating, Earth Island Institute v. Crystal Geyser Water Company is poised to have the greatest impact, as this case could potentially hold large bottling companies liable for the damages caused by the plastic holding their products. On February 26, 2020, in the Superior Court of California, County of San Mateo, Earth Island Institute sued multiple corporate defendants including Crystal Geyser Water Company, the Clorox Company, Coca-Cola Company, Pepsi Co. Inc., and The Proctor & Gamble Company, alleging, among other things, violations of the California Consumers Legal Remedies Act, public nuisance, negligence, and failure to warn of the harms caused by their plastic. Complaint at 50–60, Earth Island Inst., No. 20-CIV-01213 (Cal. Super. San Mateo Cnty. Feb. 26, 2020). In the complaint, Earth Island Institute contended that the defendants’ use of plastic packaging for their products was polluting California’s waters and that these companies have spread misinformation through a “decades-long campaign to deflect blame for the plastic pollution crisis to consumers.” Id. at 5. Earth Island Institute sought to hold corporations responsible for the plastic they push out into the marketplace. In its prayer for relief, Earth Island Institute requested an order from the court requiring the defendants to disburse funds and resources necessary to remediate the harm they have caused to the environment. Id. at 60. In addition, it asked that the defendants refrain from marketing their materials as recyclable and implement corrective advertising “to inform consumers that the products do not have the characteristics, uses, benefits, and quality that defendants claim.” Id. at 60–61.
In a strategic move, the corporate defendants filed a notice to remove the case to federal court. As of February 2021, the court had not yet rendered a decision on venue. Sumona Majumdar, general counsel for Earth Island Institute, criticized defendants’ procedural tactic, claiming that this was another attempt by multinational corporations to “deprive litigants of their state law claims and to delay consideration of the merits.” The defendants have not commented publicly on the pending litigation. Press Release, Earth Island Inst., Earth Island Institute Argues for Keeping Plastic Pollution Case in California State Court (May 6, 2020).
Earth Island shows that plaintiffs are becoming more creative and ambitious in their approach. Plastic packaging, which includes plastic bottles, accounts for around 40 percent of plastic pollution, and this effort to hold large companies responsible for the products they put in the marketplace could have a significant impact. Unlike public nuisance claims involving climate change, which are commonly dismissed for failure to demonstrate causation, the persistent and visible nature of plastic may make it easier for plaintiffs to trace the harm back to manufacturers.
A success for Earth Island Institute may inspire other plaintiffs to look beyond existing environmental laws and rely on a variety of tort claims. Fraud, product liability, toxic torts, and property damage claims against plastic producers and manufacturers are no doubt on the horizon. In December 2020, Greenpeace sued Walmart for “unlawful, unfair, and deceptive” practices regarding claims of recyclability on its private-label plastic products. Complaint at 1–4, Greenpeace, Inc. v. Walmart, Inc., No. RG20082964 (Cal. Super. Dec. 16, 2020), 2020 WL 8642276. Insurance companies have suggested that microplastics could be the next “toxic tort,” and New York Law Journal has speculated about the coming wave of insurance, product liability, and property damage claims involving plastic. Mikaela Whitman, The Coming Wave of Plastic Liabilities and Insurance Coverage, N.Y. L.J. (May 29, 2020).
With no plastic-specific legislation on which to rely, aggrieved parties have brought claims under existing environmental laws as a way to hold agencies like the Corps and EPA and plastic manufacturers and transporters, such as Formosa and Frontier, responsible for their actions. This type of litigation has produced some favorable outcomes: Settlements have been reached, claims have been allowed, permits have been suspended, and waters have been reclassified. The most recent litigation, however, sounds in public nuisance, and commentaries from industry professionals suggest that the future of plastic pollution litigation will extend beyond environmental statutory law.
