Last November, I posted about litigation filed by New York State Attorney General Letitia James, asserting public nuisance and other claims against PepsiCo concerning contamination of the Buffalo River. At the time, I questioned whether litigation was really the appropriate way to solve the problem of plastic pollution. However, I also noted that, in the absence of any effective Congressional response, one could hardly blame advocates for pursuing a judicial remedy.
And so, here we are, one year later. Congress certainly has not taken any action to address the growing problem of plastic pollution. Nor does it even seem plausible to think that Congress might do so any time in the foreseeable future. And so, now another suit has been filed – this time by the County of Los Angeles, against PepsiCo, Coca-Cola Company and related entities.
The allegations in the L.A. County complaint are very similar to those in the New York case. Importantly, both cases are based solely on state law. Both complaints are fairly obviously intended to avoid federal courts and, ultimately, an unfriendly Supreme Court. It will be interesting to see if these efforts succeed. It seems fairly evident that the problem of plastic pollution does constitute a public nuisance, at least in some contexts. However, that does not mean that any individual company is necessarily responsible for such nuisances, though they may be. Indeed, just as we were about to post this blog, a decision was issued in the New York case dismissing New York’s claims. The Court was not sympathetic to New York’s creative pleading:
While no one doubts the harm litter and waste cause in our ecosystem, this does not create a civil cause of action from which to punish Pepsi/Frito Lay….
Imposing civil liability on a manufacturer for the acts of a third party seems contrary to every norm of established jurisprudence. It is not difficult to imagine the lengths prosecuting agencies would take this theory, if adopted, to punish manufacturers for the acts of others who buy their products and then, throw them in a nearby body of water.
Will the plaintiffs in these cases ultimately win? Last week’s decision is just one judge’s view. While it might be correct under existing jurisprudence, New York’s appellate courts may take a broader perspective. However, even if this decision is overturned, what would winning even mean? I’m still skeptical that these cases can lead to a comprehensive remedy for what seems to be the very significant problems associated with plastic waste. I am confident that, notwithstanding last week’s decision, short of a Supreme Court ruling that somehow makes these cases untenable, we will see more such claims asserted, both against plastics manufacturers and those using significant amounts of plastic in their products.
