Plastics in the Courtroom: The Evolution of Plastics Litigation
Connor Fraser (Napoli Student Fellow in Environmental Law & Policy, Guarini Center) / July 15, 2022
This piece is part of our Student Blog Series, featuring posts on climate, clean energy, and environmental issues from the State Impact Center’s legal interns and other students working with the Center.
Litigation related to plastic products or pollution began as early as 1971 but was historically infrequent. In the past decade, however, the number of cases involving plastics has increased dramatically. This shift coincides with a boom in the production of plastic products driven by relatively cheap oil and natural gas supplies. The increase in cases also parallels a rapid expansion in scientific research documenting the environmental and human health risks of plastics, as well as growing public concern about sustainability and climate change.
The Plastics Litigation Tracker provides a database of the past and pending cases involving plastic products or pollution. Each case profile includes a brief summary of the lawsuit, and the profiles can be filtered by category, jurisdiction, current status, and outcome (if applicable). Readers can use the tracker to stay up-to-date on issues in plastics litigation as they arise. The tracker will be updated as cases are resolved and new cases are filed. To submit cases, updates, or corrections to this database, please email [email protected].
The following sections discuss major trends evident in plastics litigation thus far. Forty-four distinct cases have been initially included in the tracker. The legal claims asserted are varied and involve federal environmental statutes, the Administrative Procedure Act (APA), federal securities law, state consumer protection statutes, local government ordinances, and other state or local causes of action, such as public nuisance and products liability. On the whole, litigation related to plastic products or pollution has increased in frequency and expanded in the number and types of claims asserted by plaintiffs. The most recent cases suggest that directly targeting major players in the plastic industry may become a more common litigation strategy.
1. Attacking State & Local Plastic Restrictions
A significant fraction of total cases (thirteen cases) are plastic industry challenges to state or local laws that would impose restrictions on the sale, use, or distribution of common plastic products, such as plastic bags or foam containers.1 The plaintiffs have predominantly been organizations aligned with plastic product manufacturers and retailers. One case, though, involved several local governments challenging Pennsylvania’s prohibition on local governments enacting taxes or bans on single-use plastic products. Most of these cases have been brought in California (seven cases) and New York (four cases).
Industry groups have used a variety of legal theories in their challenges, including that the bans or taxes at issue were preempted by state law, inconsistent with the state constitution, and/or violated state environmental statutes. For example, the Save the Plastic Bag Coalition filed five lawsuits between 2011 and 2013 attacking local ordinances across California that banned single-use plastic bags. The Coalition argued in each case that the locality had abused its discretion and asked the court to both prohibit enforcement and mandate further environmental review under the California Environmental Quality Review Act (CEQA).
Eight of these cases were decided in favor of the defendant governments, three were decided in favor of the challengers, and two were either settled or remain pending. (Save the Plastic Bag Coalition lost or settled its five challenges.) Although the case specifics vary, in cases where the court sided with the government, it most often ruled that the relevant agency complied with state environmental review requirements. In cases where the challengers prevailed, the court usually found that the ordinance at issue was preempted by state law and enjoined the government’s enforcement of the ordinance. However, courts did not always strike down the ordinances in their entirety, and some permitted governments to revise their ordinances after further review. State or local regulations restricting or banning certain plastic products could likely still withstand legal scrutiny and help decrease plastic pollution.
2. Challenging Federal Agency Regulations, Approvals, and Permits
Parties, including both non-government organizations (NGOs) and industry groups, have challenged federal agency actions in nine cases thus far.2 The vast majority of those challenges have involved regulations or approvals issued by the EPA or permits issued by the U.S. Army Corps of Engineers under the Clean Water Act (CWA).
For example, the Natural Resources Defense Council (NRDC) filed a case in 2018 contesting EPA’s approval of the total maximum daily loads (TMDLs) for waste pollution, including plastic waste, for the Anacostia River. NRDC argued—and the court ultimately found—that Maryland and the District of Columbia had impermissibly used a removal-based rate, rather than a limitation on the trash discharge rate, in setting the TMDLs. The court then remanded the case to the EPA but did not set a deadline for the EPA to approve a new plan.
In the first industry challenge in 1976, FMC Corporation sued the EPA Administrator and sought review of the agency’s initial effluent limitation guidelines and new source performance standards (applicable to facilities producing plastics and synthetic materials) under the CWA. The court ultimately remanded the regulations to the EPA due to lack of sufficient detail in the findings and guidance. Similar challenges followed in the 1970s and 1980s.
Although the sample size is small, courts have generally ruled against the government regardless of whether the plaintiffs were seeking stricter or more lenient environmental regulation in their APA suits. Even in cases where the NGO plaintiffs prevailed, however, courts remanded the approval or regulation to the relevant agency and did not impose substantive anti-pollution requirements beyond those already present in the CWA or its associated regulations.
3. Disputing Recyclability Representations with Consumer Protection Law
Recent research has documented very low recycling rates for certain types of plastic products. Consumers and NGOs have relied on this research (predominantly an extensive report by Greenpeace) to challenge the recyclability representations on plastic products. They have used state consumer protection law, such as false advertising or deceptive business practices statutes, and relied on guidance from the Federal Trade Commission (FTC) about what should be labeled as “recyclable.” A small number of cases has also involved challenges to plastic producers’ public representations that they are “sustainable and environmentally friendly.”
The eleven cases in this category3 have, for example, implicated “recyclable” labels on products such as Coca-Cola beverages and Walmart’s proprietary plastic packaging. Most were filed in California, which has a statute governing the use of environmental marketing claims (though a handful of states have similar statutes).
Most of these cases are ongoing. But plaintiffs have been successful in securing favorable decisions or settlements when they have targeted the specific representations on plastic products that influenced consumers’ purchasing decisions. For example, Keurig entered into settlement negotiations with a nationwide consumer class because the plaintiffs had presented evidence that undermined the accuracy of the recycling labels on Keurig’s coffee pods and showed that consumers had paid more for the pods because they believed that the pods were recyclable.
4. Emerging Federal and State Law Claims Against Plastic Producers
A final category of cases encompasses suits brought by NGOs, consumers, shareholders, and state attorneys general against plastic manufacturers, distributors, or retailers. Of the seven cases in this category, four have been filed in the past three years.4 Together they reveal some emerging litigation strategies that environmental advocates and the government may employ to hold major players in the plastics industry accountable for widespread plastic pollution.
First, NGOs have brought three cases against plastic manufacturers for allegedly violating the CWA or the Resource Conservation and Recovery Act (RCRA). The plaintiffs argued that the manufacturers violated the statutes by discharging plastic “nurdles” (small plastic pellets) into navigable waters or disposing of them on land. These cases have all settled—in some cases for millions of dollars when there were repeated alleged violations.
Second, the Earth Island Institute filed a case in 2020 against an extensive set of plastic industry players who do business in California, including Clorox, Coca-Cola, PepsiCo, and Nestlé. Earth Island alleged a variety of state law claims, such as public nuisance, failure to warn, design defect, and negligence. And it asked the court to order that the defendants stop marketing non-recyclable products, run corrective advertising to consumers about the environmental impacts of their products, and pay for the abatement of coastal plastic pollution. Defendants removed the case to federal court. So far the only decision is the federal court’s opinion rejecting defendants asserted bases for federal jurisdiction and remanding the case back to California state court.
Third, two pending cases in New York involve federal securities law and “sustainable” plastic substitutes manufactured by Danimer Scientific, Inc. Shareholders have targeted Danimer (or its officers) for making false and misleading statements about the biodegradability of its products, among other allegations. Similar cases targeting plastic manufacturers for their statements to shareholders about recycling practices and/or plastic pollution could conceivably arise in the future.
Finally, state attorneys general have recently begun to investigate and sue major players in the plastic industry. In April 2022, California Attorney General Rob Bonta announced his office’s investigation into the fossil fuel and petrochemical industries for their role in aggressively promoting plastic products, exacerbating plastic pollution, and concealing the harmful effects of their products from the public. As part of the investigation, AG Bonta issued a subpoena to ExxonMobil, a major manufacturer of plastics. In June 2022, Connecticut Attorney General William Tong announced his office’s lawsuit against Reynolds Consumer Products for violating Connecticut’s Unfair Trade Practices Act. AG Tong alleges that the company falsely and deceptively marketed Hefty trash bags as “recyclable” despite knowing that they could not be recycled in Connecticut recycling facilities. These claims are similar to those that consumer classes and environment groups have brought against plastic distributors and retailers (discussed in the preceding section). More state attorneys general may join AGs Bonta and Tong in investigating or litigating against the plastic industry.
The Guarini Center and State Impact Center would like to thank Tiernaur Anderson, Julien Blanchard, Connor Fraser, Michelle Kelrikh, Nathan Lee, Georgia Rock, and Anthony Tang for their contributions to the Plastics Litigation Tracker.
- To read more about these cases, filter for cases labeled with “ Tax” and “Plastic Ban” in the Category field of the tracker and then filter for “Industry” in the Plaintiff field of the tracker.
- To read more about these cases, filter for “Government” in the Defendant field of the tracker and then filter for “Federal” in the Jurisdiction field.
- To read more about these cases, filter for cases labeled with “False Advertising” and “Unfair Competition Law” in the Category field of the tracker.
- To read more about these cases, filter for cases labeled with “Industry” in the Defendant field and then exclude cases labeled with “False Advertising” and “Unfair Competition Law” in the Category field of the tracker.