As we wrap up our week-long celebration of Earth Day with insightful articles focusing on various aspects of plastic pollution, this final article focuses on how the courts are being asked to step into ring and referee the “Planet Versus Planet” match.
These court cases can generally be broken down into three categories: (1) litigation initiated by industry challenging state or local laws that seek to impose restrictions on the sale, use or distribution of plastic products such as plastic bags or single use plastic containers; (2) litigation relating to claims with respect to recyclability/recycling rates for certain plastic products, and (3) litigation alleging violations of certain environmental statutes such as the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA).
Turning to the first category, these challenges to state and local laws were most often brought by trade groups aligned with plastic product manufacturers and retailers. The laws were most typically challenged on the basis that the governmental entity either exceeded its statutory authority and/or that the state/local laws were preempted. As a general matter, these challenges were generally not successful as evidenced by the myriad of plastic-related regulations currently in effect such as plastic bag bans and recycling requirements.
As to the second category, these types of challenges are typically brought by a non-governmental entity (NGO) and/or consumer. These claims generally focus on representations made by manufacturers with respect to the degree to which the product and/or packaging is either recyclable/recycled or the percentage of recycled content present in the product/packaging. These lawsuits generally rely on state consumer protection laws and target specific representations that plaintiffs claim influenced their decision to purchase the particular product. Some of these lawsuits have resulted in favorable decisions for plaintiffs, with certain manufacturers agreeing to modify product labeling.
Some of these lawsuits have also included common law claims such as negligence and nuisance, with plaintiffs arguing that because industry is responsible for creating “plastic pollution”, it should similarly be responsible for remedying the harms posed by such pollution. These claims, for the time being, have generally not been successful in the courts.
The final category of cases consists of lawsuits brought by NGOs and similarly situated plaintiffs alleging violations of federal statutes such as the Clean Water Act (“CWA”) or the Resource Conservation and Recovery Act (“RCRA”). For example, in Coalition to Protect Puget Sound Habitat v. U.S. Army Corps of Engineers, the plaintiff sued the U.S. Army Corps of Engineers claiming that the authorization of certain commercial aquaculture operations in tidepools violated the CWA. This lawsuit remains pending in the district court in Washington.
In Charleston Waterkeeper v. Frontier Logistics, the plaintiff alleged that plastic pellets found in a watershed in close proximity to defendant’s manufacturing site were violative of the CWA and RCRA. The matter was subsequently resolved with the defendant agreeing to pay $1.2 million and modify its operations to mitigate the release of plastics into the environment. We anticipate that the courts will continue to play a key role as ring-referee in the ongoing fight between the planet and plastic pollution.
And with that, we close out our Earth Day blog series. We hope you found them to be insightful. Please continue to follow Jenner & Block’s Corporate Environmental Lawyer as we continue to provide track and blog in important environmental, health and safety issues.
