Given the almost incomprehensible scale of the problem, tackling it will inevitably require unprecedented cooperation on the international scale. There are numerous studies and action plans focused on addressing the issue that have been developed—for example, UNEP’s “Turning off the Tap,” the U.S. Environmental Protection Agency’s (EPA) Draft National Strategy to Prevent Plastic Pollution, the Pew Charitable Trust’s Breaking the Plastic Wave, the National Oceanic and Atmospheric Administration’s (NOAA) 2021 Hawai’i Marine Debris Action Plan, and many more. However, leadership and resources to implement those plans have been lacking. While many states have implemented legislation and regulations that attempt to reduce the origination of plastic pollution, a comprehensive initiative to remove legacy pollution in the ocean has not materialized. This article will suggest actions that the United States may take—within existing regulatory frameworks—to address legacy pollution, with a focus on the Pacific Ocean.
The Existing Problem with Plastic Pollution
The impacts of plastic pollution on the world’s oceans are devastating because plastics persist in the environment and never decompose. However, they do break into microplastics, which are harder to capture and can be ingested by marine wildlife. Other impacts range from ensnaring marine animals and cluttering the world’s beaches with unsightly litter to permanently altering ecosystems as microplastics absorb pollutants and contribute to the bioaccumulation of pollutants in marine food webs. The U.S. state of Hawai’i may be the poster child of the challenges associated with tackling the plastic pollution problem—massive piles of plastic waste have accumulated along the shores of Kamilo Beach on the Big Island, giving it the nickname “Plastic Beach.” Liz Barney & Michelle Broder Van Dyke, Welcome to Hawaii’s “Plastic Beach,” One of the World’s Dirtiest Places, The Guardian, Jan. 10, 2020. As a result, on March 30, 2020, John Busterud, EPA Region 9 Administrator, ordered Hawai’i Department of Health to list multiple waters as “impaired” under section 303(d) of the Clean Water Act (CWA) due to plastic contamination. Unfortunately for Hawai’i, the majority of plastic pollution impairing its waters is generated outside the state. In fact, Hawai’i has some of the most stringent single-use plastic laws in the United States, leaving Hawai’i to deal with a problem it largely did not create. See Nat’l Conf. of State Legislatures, State Plastic Bag Legislation (2023) (noting that since Hawai’i’s four most populous county governments each have a ban on single-use plastic bags, it effectively applies statewide).
Hawai’i is not alone. Plastic pollution presents significant challenges for the United States at every level of government due to the scope of the problem. Ultimately, international-scale efforts will be necessary. However, as a starting point, the United States, in partnership with individual states, can and should take action to address the existing legacy plastic pollution in the ocean.
A Classic Goldilocks Conundrum: Current Efforts Are Too Big or Too Small
The current efforts and proposed plans to address legacy plastic pollution present a classic Goldilocks conundrum—they are either too big in scale (and thus aspirational only) or too small (and thus are only marginally effective at best).
Many efforts to reduce plastic pollution are spearheaded by nonprofit organizations and target specific locations or regions where the plastic pollution problem is most visible. These hyperlocal cleanup efforts, such as those sponsored by the Hawai’i Surfrider Foundation and American Rivers, organize volunteers to manually remove plastic pollution from shorelines. See, e.g., Surfrider Found., 2019 Plastic Pollution to Policy Solutions Beach Cleanup Annual Report (July 2020). These efforts are not insignificant, and organized beach cleanups can mobilize hundreds or even thousands of volunteers to remove multiple tons of plastic in a single event. But given the global scale of the problem, even the most tireless of volunteer efforts cannot remove the amount of plastic that currently plagues the world’s oceans.
Efforts by individual governments largely suffer from the same limitations of scale. Where governments have taken concrete and enforceable steps to address plastic pollution, such action has largely come in the form of restrictions on consumer-level plastics (for example, banning single-use plastic containers and plastic bags) and fines. Bans and fines may be nominally effective at reducing single-use plastic within a given jurisdiction. But plastic pollution does not respect legal boundaries. Further, bans and fines do little to incentivize the removal of legacy plastic pollution. Hawai’i, as previously mentioned, has had a de facto statewide ban on all single-use plastic bags since 2015, yet its plastic pollution problem only continues to worsen.
On the other end of the spectrum are proposed action plans that are so large in scale that they are purely aspirational, rather than tangible or actionable programs. For example, the United Nations Environment Assembly’s Resolution 5/14, adopted on May 10, 2022, created an “intergovernmental negotiating committee” to develop an international legally binding agreement to end plastic pollution by 2024. While admirable, the Resolution itself does not meaningfully call for direct action on the part of its signatories but sets up the process by which a meaningful treaty can be negotiated by 2024. The Resolution is founded on the international community’s current recognition that the world needs to “promote national and international cooperative measures to reduce plastic pollution in the marine environment” and “promote research into and development of sustainable, affordable, innovative and cost-effective approaches.” Pursuant to the Resolution, the Intergovernmental Negotiating Committee is scheduled to meet five times to develop an effective treaty, including concrete action items and a clear structure for scientific support with further research, to move beyond the mere promotion of lofty sustainability principles that do little at this juncture to actually resolve the plastic problem worldwide.
Similarly, the EPA’s April 2023 Draft National Strategy to Prevent Plastic Pollution (EPA Draft Strategy) puts forth the grandiose goal of eliminating by 2040 the release of plastic waste from land-based sources into the environment. To achieve this goal, EPA proposes a three-objective strategy, which includes (1) reducing pollution during plastic production, (2) improving post-use materials management, and (3) preventing trash and micro/nanoplastics from entering waterways and removing escaped trash from the environment. While objectives (1) and (2) are necessary and should be addressed as part of a comprehensive plastic pollution reduction strategy, only objective (3) is aimed expressly at reducing legacy plastic pollution, which is the crux of the existing problem.
Although the EPA Draft Strategy proposes some definitive action items to reduce and prevent legacy plastic pollution, the majority of its “Proposed Actions” call for further study or development of additional plans. For example, in Section C.1. of the Draft Strategy, EPA calls for conducting “analyses on the cost, effectiveness, and equity of policies/programs addressing the problems of litter, illegal dumping, and unintentional spillage of trash,” particularly in overburdened or environmental justice communities. Similarly, at C.2.2., EPA calls for funding “research, development, demonstration, deployment, and maintenance of existing and new technologies and processes that capture trash or micro/nanoplastics in waterways, stormwater, and wastewater,” and at C.4.2., for additional research on “successful outreach and education practices and programs to motivate positive behavior change.” While further study is certainly needed in some areas (especially regarding emerging technologies to more effectively recycle plastic), large bodies of existing research already define the problems EPA has identified. We know all too well the harms that plastic pollution causes to the environment and human health, the compounding impacts on overburdened communities, and the most effective means of educating the public about the plastic pollution problem to change consumer behavior. Instead of calling for further development and study in these areas, EPA would be better off crafting actionable policies and strategies based on the extensive body of research and proposed plans that already exist.
An immediate focus on the removal of legacy plastic pollution would be a good starting point. Implementing effective cleanup strategies also will be an effective way to conduct further study, garner public support, and identify incentives for further reduction and cleanup efforts. There are existing legal mechanisms that could be used to actively address the plastic pollution problem rather than delay in the name of crafting a single unified solution.
Obstacles to Addressing Legacy Plastic Pollution
The scope of the plastic pollution problem is large, and instinct to date has been to continue studying various aspects of the problem to develop a comprehensive solution. The obstacle with that approach is that the volume of plastic in the oceans continues to grow. This impacts not only the ocean ecosystem, but also coastal communities where the plastics wash ashore onto beaches. Implementing plastic removal actions will have immediate beneficial results, even while additional study and consideration are given to options for eliminating the sources of plastic pollution. As discussed below, there are several reasons that the removal of legacy plastic pollution has not occurred.
First, the vast majority of the ocean, and thus the physical bulk of the existing plastic pollution problem, exists in areas beyond any country’s jurisdiction. In simple terms, under the United Nations Convention on the Law of the Sea (UNCLOS), each coastal nation has exclusive jurisdiction over the ocean up to 12 nautical miles from their shore (known as the territorial sea); authority to enforce customs, fiscal, immigration, and sanitary matters up to another 12 nautical miles from their shore (known as the contiguous zone); and sovereign rights to explore, exploit, and conserve living and nonliving resources up to 200 nautical miles from their shore (known as the exclusive economic zone). Although the United States is not a signatory to UNCLOS, with Presidential Proclamation No. 5030 (March 10, 1983), the United States claimed jurisdiction over ocean waters that largely align with UNCLOS. The United States has therefore claimed the authority to take actions to manage ocean resources and preserve the marine environment in these areas. But in the waters that lie beyond, the United States has no legal authority or control. This does not mean that the United States is blocked from initiating, leading, and funding efforts to remove plastic located in these areas. It does mean, however, that the United States and other countries have exercised caution in taking actions in areas where they have no direct sovereign authority. This is particularly true with respect to actions needed in the Pacific Ocean to reduce plastic pollution, given that much of the pollution is believed to come from fishing operations originating out of other countries. See, e.g., Laurent Lebreton et al., Industrialised Fishing Nations Largely Contribute to Floating Plastic Pollution in the North Pacific Subtropical Gyre, 12 Sci. Rep. 12666 (Sept. 1, 2022). But when it comes to removing plastics from the ocean, the lack of sovereign jurisdiction to require action does not preclude the United States from undertaking such action itself, or from leading partnerships with other countries for such removal.
In addition to a lack of clear legal authority, there is also the question of how to fund removal. The enormous size and scope of the plastic pollution in the ocean require a significant funding source for effective removal efforts. As explained above, because the United States does not have jurisdiction over the ocean areas in which the plastic patches are located, it cannot require other countries to fund or contribute to removing the plastic. Other countries face the same obstacle. But the result is that no one takes responsibility.
Another obstacle is the evolving scope and size of plastic materials. At first blush, it may be hard to understand why removal of the plastic from the ocean is so difficult. We know where it is, we know what it is, and we understand the harm it is causing. But, in addition to the logistical challenges associated with the fact that these plastic patches are located far out in the middle of the ocean, the composition of the plastic patches adds even more difficulty. Many people imagine a large island of floating debris when they think of these plastic patches. But, in reality, the majority of plastic pollution in the ocean is composed of much smaller pieces. As the sun’s ultraviolet radiation, wind, currents, and other natural forces break apart large pieces of plastics (such as fishing nets and ropes, or bottles and plastic packaging), they break into small pieces almost invisible to the naked eye. These “microplastics” are extremely difficult to extract, requiring specialized nets to capture. Additionally, microplastics are now known to permeate the water column. While much of it is suspended in water, some of the larger and heavier pieces settle deeper into the ocean. This results in the debris being spread over a large area that is constantly being mixed and moved by currents, wind, and wave action. All of this makes it difficult to remove these patches.
Another impediment to removing these plastic patches is that there are limited options for recycling or disposing of them. This creates a disincentive to clean up these plastic patches at scale, both because there is little to no economic benefit to doing so and because the most viable options for disposal are to place them in a landfill or burn them for energy recovery. Furthermore, there are environmental impacts associated with both options.
Existing Tools to Jumpstart Removal
Despite these obstacles, there are opportunities to develop actionable solutions to address legacy plastic pollution, particularly in the Pacific Ocean where the largest patch is located. Congress recognized many of these opportunities when they adopted the Save Our Seas Act, and amended it in 2020 (Save Our Seas 2.0). 33 U.S.C. ch. 55. Under the Act, Congress established pilot projects that offered incentives to fishermen to collect and dispose of plastic found at sea, provided a framework for international coordination on addressing marine debris, and fostered opportunities for plastic reuse through development of additional post-consumer materials management options.
Most notably, Save Our Seas 2.0 provides a clear way for states to leverage federal power and funding to initiate removal of plastic pollution. Specifically, a state’s governor may request that the NOAA Administrator designate a “severe marine debris event” when that state suffers from significant plastic pollution. 33 U.S.C. § 1952. Save Our Seas 2.0 revised the definition of a “marine debris event” to include “marine debris caused by an intentional or grossly negligent act or acts that cause substantial economic or environmental harm.” Id. § 4201(6). In other words, a state may request NOAA designation even if there is no single catastrophic plastic release. In the event of a “severe marine debris event,” the federal government will assist in the cleanup and response. Additionally, the federal government will pay 100% of the cost of the cleanup activity where an activity is initially funded by a person (including the government of a foreign country), or 75% of the cost of the activity for any other action taken to address the event.
Hawai’i’s current predicament is a clear example where the Save Our Seas 2.0 can be leveraged to clean up existing plastic pollution. There has been tremendous publicity about the plastic pollution washing up on Hawaiian beaches. EPA determined that certain Hawaiian waterways are impaired due to marine debris (including plastic). NOAA’s own studies and website document the increasing harms caused by the garbage patches, particularly those in the Pacific Ocean. All of this demonstrates that the plastic in Hawai’i’s waters has become a severe marine debris event. Even though Hawai’i cannot point to a specific actor or event that caused the plastic pollution, the change in the definition of “significant marine debris event” arguably encompasses the current situation, where plastic pollution has impacted a state to such a degree that federal assistance is needed.
Using the Save Our Seas Act in this manner would allow for immediate action to remove the legacy plastic by providing funding to support it. EPA could then build on this designation in an overhaul of its Draft National Strategy to Prevent Plastic Pollution. As described above, the current Draft primarily focuses on additional studies to prevent future plastic pollution. While additional study may be needed on specific topics such as options for reuse or disposal, this should not preclude EPA from identifying concrete actions to reduce legacy plastic pollution now. The strategy should include not only prevention of future pollution, but also tools to remediate existing pollution. One question EPA posed to the public in the Draft Strategy was “Are there other actions that should be included in the Strategy?” The answer is clearly yes: Removal of legacy plastic pollution should be a priority but is largely absent from the current Draft Strategy. This is especially important in light of EPA’s efforts to address impacts of pollution on overburdened or vulnerable communities. Many coastal areas and beaches impacted by plastic pollution have significance to native communities, creating concerns for historical and cultural resources and environmental justice. See, e.g., Cristen Hemingway Jaynes, Indigenous-Led Solutions Essential to Reversing Plastic Pollution, Researchers Say, EcoWatch, Aug. 17, 2022. Removing the plastic patches is a necessary component to addressing those impacts and ensuring native communities and their cultural and historic resources are protected.
Leadership at the state level in the United States may be one means to drive the removal of legacy plastic pollution. The Save Our Seas Act recognizes that states are directly impacted by plastic pollution and helpfully gives states the opportunity to lead the charge in removal efforts. There are already many groups invested in this issue, and many studies outlining action items to address legacy plastic pollution. What has been lacking is leadership to pull all of the relevant parties together with a comprehensive plan for plastic removal. The Save Our Seas Act offers a significant funding opportunity that could support state-led action. Implementing an effective plastic removal program would also bring greater attention and drive for addressing pollution prevention and recycling opportunities.
