Plastics in the Courtroom: The Evolution of Plastics Litigation

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]​nyu.​edu.

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.

  1. 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.
  2. 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.
  3. To read more about these cas­es, fil­ter for cas­es labeled with False Adver­tis­ing” and Unfair Com­pe­ti­tion Law” in the Cat­e­go­ry field of the track­er.
  4. 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.