An Update on the Legal Landscape Surrounding Plastic Pollution
It’s hard to reflect on “Our Power, Our Planet” this Earth Day without discussing plastic. Plastic is deeply embedded in our daily lives. Consider, for example, the plastic packaging that came with your latest purchase, or the plastic utensils that accompanied your recent takeout order; also, the turf field at a sporting event you recently attended, or your polyester jacket. Plastic is cheap and effective—lightweight, versatile, and durable. That is why it is also integral to most industries, including the construction, transportation, healthcare, electronic, and renewable technology industries.
It’s not surprising, then, that plastic is ubiquitous in the environment. Consider, for example, the last time you went on a walk and saw a plastic container or bag strewn on the ground or in a waterbody. Even beyond what we see in our daily rituals, microplastics, plastics less than five millimeters in size, and nanoplastics, a subset of microplastics between one and one thousand nanometers in size, have been detected in all environmental media, including in deep-sea sediments and in Antarctica, as well as in animals and humans.
Microplastics can enter the environment from (1) the release of intentionally manufactured microplastics (primary microplastics) and (2) the degradation of larger plastic products (secondary microplastics). Primary microplastics may include:
- Polymeric binders and additives in paints;
- Synthetic microfibers in textiles;
- Synthetic rubber in vehicle tires (can be released in small particles through mechanical abrasion);
- Microbeads in personal care products; and
- Pre-production plastic pellets, known as nurdles (used to manufacture plastic products).
The potential ecological and human health impacts of microplastics are the subject of ongoing research. Plastic additives, such as phthalates, bisphenols, and flame retardants, can also leach from plastics into the environment, creating additional ecological and human health concerns.
As concerns surrounding plastic pollution mature, plastic producers, manufacturers of plastic products, entities who distribute, handle, or transport plastic products (including microplastics such as microbeads and nurdles), and entities involved in the recycling or reuse of plastic products should understand the evolving legal developments in this space.
Last November, the Biden EPA issued its final National Strategy to Prevent Plastic Pollution, as required by the Save Our Seas 2.0 Act, which President Trump notably signed into law in December 2020. Among the potential action items identified in the strategy were to, where appropriate, update regulations for petrochemical and plastic production facilities and transporters of plastic pellets (aka nurdles) and plastic additives, update sustainability standards, reduce the production and consumption of single use plastic products, and develop a national extender producer responsibility (EPR) framework. While the EPA hasn’t expressly stated that it plans to depart from this strategy, the strategy does indicate that its implementation is expected to be an iterative process as resources, entities leading efforts, and needs change over time.
President Trump’s recent Executive Order, Ending Procurement and Forced Use of Paper Straws, which declares it a policy of the United States to end the use of paper straws and orders the federal government to eliminate paper straws from federal agencies (in favor of plastic straws) at least suggests that addressing plastic pollution will not be a priority of his administration. Federal regulatory efforts have been, and will likely continue to be, targeted at upstream sources of pollution associated with plastic production, with the caveat that certain regulations may be relaxed by the EPA consistent with its deregulatory agenda.
The Trump Administration’s focus on Unleashing American Energy and declaration of a National Energy Emergency may actually spur plastic production, as most plastics are derived from oil and natural gas. Also, the new 25% tariffs on aluminium may cause some companies to switch their packaging from aluminium to plastic. Tariffs may disrupt manufacturing and recycling operations that depend on recycled material inputs, as well.
Amidst this federal backdrop, states continue to address plastic pollution through bans on microbeads in personal care products, single-use plastic bans or restrictions (e.g., plastic bags, polystyrene foam containers, plastic utensils, plastic bottles containing personal care products at hotels), post-consumer content laws, EPR laws, and in California, testing drinking water for microplastics.
Post-consumer content laws generally mandate that plastic products such as packaging contain a minimum percentage of recycled materials. EPR laws assign producers responsibility for the end-of-life of products and generally require producers to join a producer responsibility organization (PRO) that then develops and manages a program for the end-of-life management of covered products.
For an example of single-use plastics legislation pending in Illinois, IL SB1531 (The Disposable Food Container Act) would, beginning January 1, 2030, prohibit a person from selling or distributing in Illinois a disposable food service container that is composed in whole or in part of polystyrene foam. Senate Committee Amendment No. 2 excludes egg cartons from the definition of disposable food service container. IL SB1872 (The Plastic Bag Production Act) would, beginning January 1, 2029, prohibit a retail mercantile establishment from offering or making available a single-use checkout bag to consumers at the point of sale.
On the litigation front, citizen suits, public nuisance claims, and consumer protection/greenwashing claims continue to make their way through the courts. As we have explained in the past, some cases have had success (see also our recent client alert here). For example, some citizen suits under the Clean Water Act and Resource Conservation and Recovery Act (involving nurdles) and some consumer protection/greenwashing claims (involving representations concerning plastic products) have settled.
Moreover, on July 11, 2024, a California state court denied the defendants’ motion to dismiss a public nuisance claim against major food, beverage, and consumer products businesses based on their alleged contributions to plastic pollution in California’s waterways and coasts, finding that causation was adequately pled. (Earth Island Inst. v. Crystal Geyser Water Co., No. 20-CIV-01213 (Cal. Super. Ct.).) This case is worth closely following.
On the other hand, cases brought against bottled water companies have consistently been dismissed. Most recently, on March 3, the Northern District of Illinois dismissed consumer protection claims brought against Fiji Water on the basis that the plaintiffs failed to plausibly allege that Fiji Water actually contains microplastics. The court did note that citing relatively contemporaneous tests of other bottles of Fiji Water (whether opened or unopened), could have been sufficient. (Daly v. Wonderful Co., LLC, No. 24 C 1267 (N.D. Ill. Mar. 3, 2025).)
The above is just a snapshot of the current legal landscape surrounding plastic pollution. As we contemplate “Our Power, Our Planet” this Earth Day, we should think critically about this topic with an eye towards a circular economy. Solutions may include moving away from single-use plastics towards reusable alternatives, moving away from certain plastic additives, using bioplastics or recycled plastics, improving recycling infrastructure and technologies, moving away from products that contain or release primary microplastics, and reducing emissions associated with the plastics lifecycle. Recognizing this Earth Day’s focus on renewable energy, renewable energy can be used to power the production, management, and recycling of plastic, reducing its carbon footprint.
Clearly, we are living in complicated times, defined by many environmental, technological, and political challenges. As we reflect this Earth Day, let’s explore the tension between the way things are and the way they ought to be and continue to responsibly use Our Power to make positive changes for Our Planet.
