Efforts to hold plastics industry accountable through lawsuits are growing

The plastic pellets washing up on beaches and in marshes around Charleston, South Carolina, became very obvious about five years ago.

Called nurdles, these pebble-sized particles that are the raw material for many plastic products floated, too, in the aquamarine waters of the harbor, many carried at high tide to Sullivan’s Island, known for its white sand and million-dollar homes, where they caused alarm.

“We had been working to enact single-use plastic bans and then we started to see this nurdle problem,” recalled Andrew Wunderley, the executive director of Charleston Waterkeeper, part of the national Waterkeeper Alliance, an environmental organization. “Now we had industrial-like plastic pollution.”

So Charleston Waterkeeper joined with the Southern Environmental Law Center, a nonprofit law firm, and the Charleston-based Coastal Conservation League, to identify what they believed to be the source of the nurdles and then to take that company, Frontier Logistics, L.P., to federal court, in March 2020. A year later, the environmental advocates and Frontier reached a settlement that included $1 million to improve water quality in the Charleston Harbor watershed.

From South Carolina to California, nearly 60 lawsuits have been filed since 2015, mostly by citizens or environmental groups, targeting the plastics industry. The litigation comes amid a rapidly expanding body of scientific knowledge detailing how burgeoning plastics production damages the planet and threatens public health. 

Most recently, attorneys general in Connecticut, Minnesota and New York have raised the stakes with their own plastics lawsuits, bringing with them considerable legal firepower. 

And, in California, a two-year-old investigation by Attorney General Rob Bonta into the plastics industry and its claims about recycling shows signs of concluding, potentially resulting in a case pitting the largest state in the nation against one of the largest plastic makers in the world, ExxonMobil, and powerful industry trade associations such as the American Chemistry Council (ACC) and the Plastics Industry Association (PIA). 

In late May, the ACC and the PIA filed their own lawsuits in U.S. District Court in Washington, D.C., objecting to Bonta’s effort to obtain through subpoenas certain internal documents from the associations, including some involving the controversial practice of “advanced” or “chemical” recycling, while claiming California was infringing on their first amendment rights to advocate for their preferred public policy.

Bonta’s media office declined to comment on the status of the California investigation. Still, in April, the attorney general told a Reuters reporter that a decision on whether to proceed with the plastics litigation could be made “within weeks.”

Typically, these plastics lawsuits attempt to hold the companies that use plastic packaging or stores that use plastic bags accountable for alleged deceptive marketing claims about the environment or recycling.

Most are still working their way through the courts, though some have been dismissed, and environmental advocates count a few victories, such as the nurdle case in South Carolina.

“There has been zero action at the state or federal level to stop pollution from the plastics industry,” Wunderley said, four years after the South Carolina settlement. “It’s left to the citizens to pick up the slack. When the state and federal government won’t act or haven’t acted, we can step in and hold these polluters accountable.”

Plastics Lawsuits Follow Climate Lawsuits

Plastic pollution has found its way to the highest mountains and deepest parts of the ocean, into the bellies of marine mammals, the placentas of new mothers and human blood. Made of more than 16,000 chemicals, there’s a growing field of medical research that links plastics to obesity, infertility, an increased risk of miscarriage, cardiovascular disease and cancers.

Plastic production continues to soar, with petrochemical companies producing 460 million metric tons of plastic in 2019, an amount that could triple by 2060, according to the Paris-based Organization for Economic Cooperation and Development. Across the globe, less than 10 percent gets recycled.

The plastics litigation follows an explosion of similar lawsuits responding to the global climate crisis. A report, compiled by the U.N. Environment Program (UNEP) and Columbia Law School’s Sabin Center for Climate Change, last year identified 2,180 “climate change” cases between 2020 and 2022 alone.

The climate cases are typically aimed at holding governments accountable to their climate commitments, challenging governmental action or inaction about emissions or adaptation to climate change—or attempting to establish liability primarily of fossil fuel companies for harm caused by the effects of climate change, such as extreme weather events. 

The UNEP report found that the litigation had influenced policy in some European countries, but many cases in the United States have faced lengthy procedural delays and climate litigation has not yet translated into systemic shifts in climate governance.

The New York University School of Law launched a plastics litigation tracker in 2022 and has observed a variety of plastics-related lawsuits in federal and state courts. Plaintiffs have included individuals as well as environmental groups such as Greenpeace, Sierra Club and Earth Island Institute. Some cases, like the South Carolina lawsuit, cite provisions of the federal Clean Water Act. But others take on the industry on grounds that the plastic waste is a public nuisance, or that companies are making false claims about their business practices or products.

In one such early case, filed in Superior Court in California in 2018, a resident of Lafayette, a San Francisco suburb, targeted Keurig Green Mountain, Inc., now Keurig Dr. Pepper, and the recyclability claims for its individual serving plastic coffee pods, called K-Cups, in what became a class action case. 

The lawsuit alleged that most recycling facilities were not properly equipped to capture items as small as K-Cups and, even in rare cases where they could, they ended up in landfills because there was no recycling market for them.

Without admitting any wrongdoing, the company agreed in February 2022 to a $10 million settlement and to add a qualifying statement to its recyclability claims that it still uses: “Check Locally—Not Recycled in Many Communities.”

“From a false labeling standpoint, Keurig was almost as good as it gets,” said retired California attorney Howard Hirsch, the lead lawyer on that case and several other plastics lawsuits. “When we started that case, they had emblazoned in large letters on the box, ‘Have your cup and recycle it, too.’” The plastic pods had become controversial, he said, “and clearly, they were responding to the backlash over the environmental impacts of their packaging.” 

A Keurig spokeswoman, Katie Gilroy, said the company is working with communities and recyclers to more widely recycle its coffee pods, and later this year, Keurig will offer a mail-back recycling program. The company is also testing pods of ground coffee pressed and wrapped in a compostable plant-based coating, she said.

Hirsch has also represented the California nonprofit environmental group The Last Beach Cleanup, which over the last five years has filed three lawsuits related to recyclability claims, settling two of them with the third still making its way through the courts.

The main connection he sees between plastics litigation and climate litigation is the source of the issue—the petrochemical industry—since nearly all plastics are made from fossil fuels, the same primary contributor to global warming.

“It’s really all part of the same story, with the petrochemical industry sort of shifting the blame for its operations and trying to make American consumers feel as though they are the ones that need to take responsibility for these companies,” Hirsch said.

Ross Eisenberg, president of America’s Plastic Makers, part of the American Chemistry Council lobby group, called the rise in plastics litigation “disappointing.” In a written statement, Eisenberg said that “legal action has diverted attention away from the importance of recycling. Regardless, we remain steadfast in our mission to advocate for effective policy, collaborate with communities, and invest in new technologies that help to increase plastics recycling for a cleaner, more sustainable future.”

Minnesota, Connecticut Challenge Hefty Bag Maker

Beyond private civil lawsuits including class actions, state attorneys general are now filing lawsuits, raising the stakes, said Bethany Noll Davis, executive director of the State Energy & Environmental Impact Center, which manages the litigation tracker with the Guarini Center for Environmental, Energy & Land Use Law, both of which are housed at the NYU School of Law.

Significant recent filings, she said, came in Connecticut and Minnesota, where the attorneys general have sued the manufacturers of Hefty bags, Reynolds Consumer Products. 

In the Minnesota case, filed in June 2023, in state court, Minnesota Attorney General Keith Ellison claims the bags are marketed for collecting waste plastic to be recycled. But, according to the complaint, “the otherwise recyclable items placed into the bags do not get recycled, and that the bags themselves are not recyclable anywhere … when contaminated by waste residue.”

The Connecticut lawsuit, filed in January 2023 in state court in Hartford, claims that any Hefty bags containing waste plastic are in practice “diverted to landfills or incinerators.”

Reynolds Consumer Products did not respond to requests for comment on the lawsuits.

New York Attorney General Letitia James filed suit in November against PepsiCo Inc., claiming the food and beverage giant had harmed the public and the environment with its single-use plastic packaging.

“PepsiCo has long known of the harms caused by its single-use plastic packaging, acknowledging on its website that there is a ‘plastic pollution crisis’ and that its own packaging has ‘potential environmental impacts,’” the lawsuit claims. “By its continued manufacturing, production, marketing, distribution, and sale of vast quantities of single-use plastic packaging, PepsiCo has significantly contributed to, and continues to contribute to, the existence of a public nuisance that injures the community living in the city of Buffalo and surrounding area,” according to the lawsuit.

A PepsiCo representative responded in a written statement: “Packaging waste is a serious issue that requires collaboration from many stakeholders. PepsiCo is focused on being part of the solution and is pursuing goals to improve and enhance recycling programs.”

A dearth of federal policy on recycling complicates matters and invites litigation, said Steven Cook, an attorney with the law and government relations firm Bracewell, with clients that include fossil fuel and other energy companies. He worked three years as a deputy assistant administrator for the Office of Land and Emergency Management with the Environmental Protection Agency, and more than two decades as a lead counsel at LyondellBasell, one of the world’s largest plastic, chemical and refining companies.

But plastics remain essential to society, he said. “Our modern society doesn’t run without (plastics). You can’t run a hospital without plastics. You can’t get to zero emissions from cars without plastics. Consumers … wanted packaging that does certain things.”

Companies, he said, are attempting to address the problem of plastic waste, “but Congress will make a policy choice at some point. Until they do then you go to the courts.”

Plastic Makers’ Liability Questioned

Greenwashing cases against companies that use plastic packaging are scattered across the country, with their outcomes uncertain, said Alyssa Johl, vice president and general counsel at the Center for Climate Integrity, an environmental group seeking to hold fossil fuel companies and other climate polluters accountable for the damages they have caused.

In the future, plastics litigation appears headed toward the petrochemical companies that make plastic that gets turned into packaging or bags, she said.

The Center for Climate Integrity published a report in February that concluded “petrochemical companies, independently and through industry trade associations and front groups, have deceived consumers, policymakers, and regulators into believing that they could address the plastic waste crisis through a series of false solutions,” such as recycling.

When Bonta, California’s attorney general, announced his investigation two years ago, his office said it had issued a subpoena to ExxonMobil, seeking information relating to the company’s role in deceiving the public.

ExxonMobil responded with a denial.

“We reject the allegations made by the Attorney General’s office in its press release,” the company said at the time. “We share society’s concerns and are collaborating with governments, including the State of California, communities, and other industries to support projects around the world to improve waste management and circularity.”

That investigation has been kept tightly under wraps, but there are indications that Bonta could be investigating claims around both mechanical recycling, where waste plastic is sorted, cleaned, melted and molded into new plastic products, as well as what the industry now dubs “advanced recycling,” a term used to describe a variety of chemical-based, industrial processes, that seek to turn plastic waste back into basic plastics building blocks. 

But so far such technologies remain unproven, and environmentalists say most of them are polluting, energy-intensive and ineffective, turning the waste into new, dirty synthetic gases or oils.

Meanwhile, legal experts expect to see a new genre of plastics lawsuits emerge dealing with how plastics may be making people sick as plastic breaks down into micro- and even more tiny nano-plastics, carrying toxic chemicals into the body. 

With scientists raising alarms about plastics and health, it’s only a matter of time before the lawyers weigh in, said Davis, the executive director of the NYU Law School’s State Energy & Environmental Impact Center. “And the minute we find more out about that, I think we could see a new frontier of lawsuits,” she said. 

Lawsuit Outcome ‘Extraordinarily Positive’

In South Carolina, Wunderley, the Waterkeeper, describes plastic as “Charleston’s dirty little secret,” affecting salt marshes, oyster beds and beaches. “We do cleanups and it’s almost all plastic and almost all single-use plastic,” he said. 

The company, without admitting any fault or wrongdoing, moved its nurdle-handling operations away from a pier in Charleston Harbor, according to the settlement agreement, and consented to prevent the pellets from its new facility from escaping into the environment and allowed for an independent audit of its control measures.

Wunderley said he still finds some nurdles when he patrols the harbor and tries to identify the source. But he considers the outcome of the 2020 lawsuit a success. The new $1 million Healthy Harbors fund has helped some low-income families near Charleston better maintain their septic systems, thereby reducing sewage overflows, and funded an urban gardening program. It has also helped keep the Charleston Waterkeeper program on the water and looking for sources of pollution.

It’s part of an ongoing effort, Wunderley said, to take a bite out of Charleston’s “little sliver of this global plastic pollution crisis.”

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