Plastic Watch: New UN Treaty Could Spur More Plastic Waste Lawsuits

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

Isabella Kaminski writes with some enthusiasm in today’s Guardian, Rush of lawsuits over plastic waste expected after ‘historic’ deal:

A series of lawsuits against plastic producers and governments is expected after a “historic” international agreement on waste, say legal experts.

Although I’m happy to see a new front opened in the global war on plastics, I’m not optimistic  that lawsuits are going to arrest – and rollback – the spread of the plastics scourge anytime soon.

First, some details from the Guardian’s coverage:

Last week, world leaders agreed to draw up a legally binding treaty over the next two years that covered the full lifecycle of plastics from production to disposal. The move was described by the head of the UN Environment Programme as the most important multilateral environmental deal since the Paris agreement in 2015.

And, like its climate counterpart, the new treaty could provide an essential tool to hold governments and companies accountable for their environmental impacts.

Hmm. As to those climate change lawsuits, how significant have they been in thwarting climate change. So far, not very.

So while it’s welcome to see a new tool being provided to thwart the plastic pushers, assessing the impact of similar tools in the fight against climate change only leaves me more depressed.

Note also that it’s expected to take at least two years to achieve a treaty – two years in which the plastics scourge will continue unabated. I also see no sign that the Biden administration accords high priority to stopping plastics pollutantsion – so I don’t expect the U.S. to throw its weight behind this plastics treaty.

Back to the Guardian:

An imminent case in the Philippines could set an important precedent. Last year, a coalition of individuals and environmental groups led by the marine conservation group Oceana Philippines filed a petition accusing the Philippine government of failing to tackle the “unabated production, use and disposal of plastic” over the past two decades.

The group claims a law requiring the country’s public waste body to review, update and enforce a list of products that are not environmentally friendly has never been implemented despite being passed in 2001. The result of this, it say, is “the unabated emission of millions of tons of plastic waste into every nook and cranny of the Philippine archipelago”.

The petitioners, who include people who are catching fewer fish, having trouble conceiving or being affected by worsening floods aggravated by plastic pollution, say the government’s inaction is breaching their constitutional right to a healthy environment.

The Philippine supreme court has accepted the case, which goes to trial later this month.

I know next to nothing about Philippines law and litigation, so I’ll only say I’ll be watching the progress of this lawsuit closely. I hope the litigation helps prod better plastics policies in the Philippines, as the marine plastics situation around this archipelago is especially dire. Per sea-circular.org:

The Philippines is one of the world’s worst offenders on marine plastic pollution, with 0.28 – 0.75 million tonnes per year of plastic entering to oceans from coastal areas in Manila Bay. The country uses almost 60 billion sachets a year (GAIA, March 2020). Economic growth, combined with enhanced production and consumption, is leading to higher waste generation in Philippines.

U.S. Plastics Litigation

Moving onward to a subject I know a bit more about, the U.S., I’m most concerned about the timescale for any plastics litigation and its potential for success. According to the Guardian:

Carroll Muffett, the president of the US-based Center for International Environmental Law, said it was “beyond any doubt” there would be more lawsuits on plastics in future, pointing to the “small but accelerating” body of litigation already in North America.

The Guardian points to a recent lawsuit against Keurig as grounds for optimism:

The coffee company Keurig Green Mountain recently agreed settlements in both the US and Canada with a consumer and regulator respectively after being challenged on claims about the recyclability of its disposable coffee pods. The company paid out millions of dollars and has to change the language it uses on its packaging.

One thing I’ve noticed in recent travels is the ubiquity of pod-based espresso makers in hotel rooms – most recently in a December trip to LA.

Alas, the machines make decent coffee, and immediately provide that necessary jolt when you wake up in a strange hotel room (I say “decent”  if your baseline is American slosh; the stuff wouldn’t pass muster anywhere that retains a decent coffee culture, e.g. Italy).

So guests can’t be relied on to reject coffee pod coffee. Nor can all those people who rely on such machines in their households.

Recyclability isn’t really the point. Less than 10% of plastics that can be recycled are recycled. So I think relying on that solution is placing too much faith on the  recycling fairy to get us out of the plastics mess. And therefore I question a litigation strategy directed to promoting recycling – no matter how successful the litigation is.

Moving to more general U.S. issues, per The Guardian:

Earth Island Institute, a California-based environmental group, has filed three separate lawsuits against producers of plastic goods. In 2020, it began suing Coca-Cola, Pepsi, Nestlé and other large companies for creating a plastic pollution “nuisance”. The following year Earth Island Institute brought another lawsuit against Coke as well as BlueTriton Brands (formerly Nestlé Waters North America), claiming the companies falsely portrayed themselves as environmentally friendly despite being huge plastic polluters. The companies argue they are all taking action to reduce their plastic use, improve collection and try to find policy resolutions with legislators.

All three cases are still pending, but at least two will be heard in state courts, which in general have been more sympathetic than federal courts towards environmental litigants.

Some points spring to mind here. First off, litigation is time consuming. Plastics pollution worsens every day, and there’s just not time to allow the litigation process to play it’s course. More immediate and comprehensive solutions are needed. Now.

Second, what remedies do these lawsuits seek? I think we need to see more outright commitments to say no to plastic. Earlier this month, CNN reported Coors Light is ditching those nasty plastic six-pack rings, which secure six-packs and provide a short-term hazard to wildlife, in addition to the longer-term environmental impact of their plastic composition.

And third, The Guardian notes that two of three plastics cases are being heard in state courts, which is more sympathetic towards environmental litigation than federal court. In fact, that’s the case for all litigation – state courts are regarded as more plaintiff-friendly – and this understanding has led groups such as the U.S. Chamber of Commerce and other funders of certain “public interest groups” to promote “tort reform” measures that make it easier to move cases from state to federal court. These developments have unfolded over several decades.

Additionally, new legislative measures and U.S. Supreme Court decisions have accelerated during the same time period that impede plaintiffs from securing large judgments against corporate defendants. These include tightened requirements on class certification and limitations on punitive damage awards. And further, all levels of federal courts – not just the Supremes -skew heavily towards business-friendly positions, especially after the Trump administration’s success at confirming judicial nominees. When Democrats had their chance, they’ve also promoted business-friendly judges (e.g., Justice Stephen Breyer.

So while i’m happy to see environmental groups pursue plastics lawsuits in U.S. federal and state courts, I’m not holding my breath that these efforts are going to secure any meaningful, short-term reduction in plastics use.

Just Say No to Plastics

An avenue that might prove more promising is litigation that would prevent making plastic in the first place. Such as an action in Belgium. Per The Guardian:

According to Rosa Pritchard, a plastics lawyer at the environmental law charity ClientEarth, plastics-related litigation is already on the rise. “Plastics production – big oil’s plan B – is increasingly in the spotlight for its contribution to climate change.”

ClientEarth is taking legal action to stop the petrochemicals group Ineos building a giant plastics plant in Belgium.

The problem with such a strategy is that it spawns a combination of Whack-A-Mole and Not in My Backyardism (NIMBYism). If manufacture and use of unnecessary plastic isn’t banned outright, and there’s still demand for its use, we’ll just see plastics factories spring up in places that continue to allow it to be made.

The Guardian points to the campaign against climate change as a precedent. Yet given its limited success, I wonder how useful that model is:

 Pritchard said the Paris agreement had “provided an essential tool” to hold governments and corporations accountable for their contribution to climate change. “A robust treaty on plastics could also have this impact” alongside further waste and climate laws being introduced across Europe, she added.

Nonetheless, some efforts that might prove promising include using financial regulatory requirements to curtail blatant greenwashing. Per The Guardian:

As well as using the law to challenge plastic production, ClientEarth will be focusing its efforts on industry greenwashing. It has already reported Ahold Delhaize, one of the world’s largest grocery retail groups, to the Dutch financial regulator for allegedly failing to disclose key information on the company’s use of plastics or to report plastic-related risk to its investors. The company has said that it reports annually on the progress it is making with regards to reducing its plastic use and is focusing on those areas where it can have a direct impact, such as improving packaging, phasing out single-use plastic and recycling plastic waste from its sites.

What the Plastics Industry Knew and When They Knew It

In the long term, issues of what the plastics industry knew and when they knew it are coming to the fore, as happened in the climate change arena.

Does this mean we might see congressional hearings on these issues? I certainly hope so. According to the Guardian:

In a stark parallel to the misinformation campaigns on climate crisis supported by the fossil fuel industry, Muffett said there was mounting evidence that plastic producers had known for a very long time it accumulated in the environment and that they had sought to shift the blame to consumers: “It’s just a matter of when the additional dots get connected.”

Permit me, for a moment, to indulge in my own moment of optimism. As I wrote yesterday, I hope attorney general Merrick Garland acts on the request members of the House judiciary committee to investigate Amazon for possible criminal obstruction of Congress, WSJ: House Judiciary Bigwigs Ask Justice Department to Probe Amazon for Possible Criminal Obstruction of Congresss. To do so would signal that corporations can no longer act with impunity.

A Congressional plastics probe might elicit release of information that would provide the basis for further litigation, both public and private. Per The Guardian:

Muffett said: “Communities and states affected by plastics are going to be learning from the lessons of climate litigation and looking at the industries and actors that are playing a role in that crisis. A lot of different people are affected in very different ways, and that means that the potential avenues for litigation are actually very substantial and very diverse.”

Might those “potential avenues for litigation” include criminal liability?