Environmental, Natural Resources, & Energy Law Blog
Single Use Plastic Legislation in the U.S - Bettina Luis Gehris
Single Use Plastic Legislation in the U.S
By Bettina Luis Gehris LLM Student
Recycling in the United States is voluntary, non-uniform, and driven by profits. No national law mandates recycling, rather this activity rests on state and local governments. Accordingly, there is a spectrum of involvement, practices, and methods that range from city to city and state to state. Moreover, the low cost of manufacturing plastic impedes recycling: it is basically a “bad business decision to do anything other than make new plastic.”i Decades of recycling in this country have not changed the scope of our national plastic problem. According to an article in National Geographic, as it stands today:
Of the 9.2 billion tons of plastic ever manufactured, 6.9 billion tons have become waste. Most of that—6.3 billion tons, or to put it another way, a whopping 91 percent—has never been recycled. The number seemed so shocking that the UK’s Royal Statistical Society named it the international statistic of the year in 2018. That’s the same year that China stopped buying the world’s waste, and recycling has only become more troubled since.ii
In an interview with Rolling Stone, Senator Tom Udall reveals people “are consuming a credit card’s worth of plastic each week.”iii Scientists further report “the long molecular chains in plastic do not exist in nature and do not meaningfully biodegrade.”iv Plastics wear down into microplastics that are now in the sea, in the soil, are carried by the wind, in precipitation, and even exist at the polar ice caps. v Plastics can be found to contain numerous chemical formulas that pose a “complex threat to human health” that is “only going to get worse.” vi Cancers, hormone disruption and developmental delays are some of the effects traced back to these pollutants. vii A current estimate of global plastic production and incineration “creates [the] CO2 pollution of 189 coal plants.” viii Those numbers are expected to “more than triple by 2050” and reach “to the equivalent of 615 coal plants.” ix Thus, the United States needs to adopt a national ban on single use plastics.
BANS & CHARGES
Bans and charges related to plastic bags formed the first line of attack on single use plastic. Bans are a total prohibition on use of plastic bags, while charges reflect legislation to tax plastic bags.x There are “varying degrees of enforcement” for phasing out the use of plastic bags in countries around the world.xi More than 60 nations have moved to reduce single-use plastics through imposing bans or taxes, according to a United Nations report published in 2018.xii The European parliament passed a ban on single use plastic in March 2019. xiii The European prohibition “stipulates 10 single use plastic items to be banned to curb ocean pollution.”xiv Additionally, this legislation requires “tobacco companies to cover costs of cigarette butts” and “manufacturers of fishing gear to pay for retrieval of plastic nets left at sea.”xv England followed suit with a similar ban proposed in May of last year. xvi England’s legislation will focus on plastic straws, stirrers, and cotton buds; and follows the country’s success of a ban on microbeads and a 5 pence charge on plastic bags.xvii Similarly, Canada’s Prime Minister, Justin Trudeau announced his country’s plan to “ban harmful single use plastics by 2021” in June 2019. xviii Examining this legislation is helpful in learning tactics for what works and what does not.
Phase 1 of the “Canada Wide Action Plan on Zero Plastic Waste” focuses on product design, single use plastics, collection systems, recycling capacity and domestic markets.xix Meanwhile, Phase 2 (set to release by December 2020) looks at plastic pollution in water sources, advancing science, consumer awareness, clean up and taking global action.xx Canada’s plan emphasized that “zero waste does not mean zero plastic” but rather a “reduction and improved lifecycle management.” Id. The end goal is to ‘influence plastic design to promote recycled content” and to implement “systems to recover plastic and put [it] back into economy.” Id. Six areas for improvement were identified to include:
Extended producer responsibility;
Single use and disposable products;
National performance requirements and standards;
Incentives for a circular economy;
Infrastructure and innovation investments; and
Public procurement and green operation.xxi
Though these ideas have been published as a part of a national campaign, there has yet to be any national legislation adopted. Most action taken so far in Canada has been through city wide bans and district proposals.xxii Nevertheless, deadlines are set for follow on action with national support of local efforts; only time will tell.xxiii
Likewise, in the United States where consumers “use approximately 100 billion plastic bags,” action is based on city and state initiatives.xxiv Currently, eight states within the United States have banned single use plastic bags, while several others have invoked a charge for providing the service at checkout.xxv However, a national prohibition is yet to be introduced. In her article, “A Solution to Plastic Pollution? Using International Law to Shape Plastic Regulation in the United States,” Allyssa Rose suggests that the best strategy for the United States would be “to adopt a hybrid, comprehensive, nationwide regulation.xxvi Studying the United Nation’s report, “Single Use Plastics: A Roadmap to Sustainability,” published in June 2018, she compares strategies of the Global South (less developed countries in the Southern Hemisphere) and the Global North (more developed wealthier nations in the Northern Hemisphere).xxvii The Global South is exemplified by Rwanda’s total ban of plastic bags, while the Global North is represented by Ireland’s PlasTax strategy which applies “a tax on all plastic bags provided by retailers.”xxviii Ms. Rose suggests that combining both Rwanda’s and Ireland’s approaches to produce hybrid regulations similar to that used in both California and New York “would enable the United States as a whole to have a more successful plastic bag policy.”xxix Such an approach she states “would reach the maximum number of individuals who have a stake in the regulation: largely the public, the plastics industry, and retailers.”xxx “Combining the two different approaches [a ban and a tax],” she states, “would likely lead to an overall reduction in both use and pollution of plastic bags across the country.”xxxi
TEXT OF H.R.5845 and S. 3263
Representative Alan Lowenthal and Senator Tom Udall simultaneously introduced the Break Free From Plastic Pollution Act of 2020 on 11 February this year.xxxii Representative Lowenthal’s sponsored House bill (H.R. 5845) and the companion bill introduced by Senator Udall (S. 3263) are identical proposals to amend the Solid Waste Disposal Act, as well as, Chapter 31 of the Internal Revenue Code of 1986.xxxiii Summarized the bill focuses on three major initiatives: “1. A shift toward producer responsibility,” “2. [a] pause on new plastics facilities,” and “3. [a] phase out of top polluting products.”xxxiv Udall’s strategy has been “to adopt best practices from across the globe.” xxxv Also, “formally bar[ring the] US from exporting plastic to developing countries,” and expanding extended producer responsibility (EPR) to have companies “design, manage, finance programs to collect and process wastes that normally burden state and local governments.” xxxvi
Specifically, in Part K, Section 12001, of the proposed language, the term “recyclable” is overhauled in the Solid Waste Disposal Act to require “covered products” made within a percentage of postconsumer content.xxxvii Additionally, to be “recyclable” items must not require that consumers “remove an attached component” and “must convert into raw material with minimum loss of quality.”xxxviii The new definition of “recyclable” goes even further to exclude “downcycling” and “alternative products” such as secondary uses as fuel, energy, chemicals, and feedstock.xxxix Thus shifting responsibility for reducing waste and reusing materials to the producer of these products rather than to the consumer. Addressing problems that result from shrink sleeves, labels, or filters that botch recycling efforts. “Extended Producer Responsibility” discussed in section 12101 of each bill, sets a maximum civil penalty of $70,117 for each violation for each day. Section 12102 requires that producers whose products “disrupt recycling or comporting processes” be charged more for cost of management, cleanup and administrative costs.
The Break Free From Plastic Pollution Act of 2020, combines many of the approaches seen in other nations and localities. Section 12104 introduces the “National Beverage Container Program,” mandating a “refund value not less than $0.10” for “covered products.” Section 12201 promotes a “Prohibition on Single Use Plastic Carryout Bags” and Section 12202 a “Reduction of Other Single Use Products” initiates a prohibition on products such as plastic utensils and plastic straws. Most notably, Section 12304 “Product Labeling” requires clear identification of “recyclable”, “not recyclable”, “compostable”, or “reusable” to be included on products, and Section 12305 lays out a national standardized labeling system for collection containers.
The New York times reported that the Act “is a long shot, with no Republican co-sponsors.”xl Skopos Labs is a team of experts headquartered in New York that has created an artificial intelligence (AI) platform that predicts the impacts of policy making on companies and markets.xli Forecasts assign the House bill a 3% chance of being enacted, while the Senate bill has an even more dire prognosis of 1%.xlii The House bill was sent to four committees: Energy and Commerce, Ways and Means, Transportation and Infrastructure, and Foreign Affairs.xliii The Transportation and Infrastructure Committee, then sent this bill to Subcommittee on Water Resources and Environment. xliv There are 67 Democratic co-sponsors for the House bill.xlv The companion bill was sent to the Senate Finance committee and currently has 8 cosponsors, six of whom were original.xlvi To date, no other action has been reported.
Meanwhile, another source reports that “[e]ven if it doesn’t pass, the bill brings crucial ideas to the forefront of the national conversation around plastic waste” by “envision[ing] a roadmap for getting these kinds of policies rolled out on a much larger scale.”xlvii However, “[t]here are some provisions in the bill that could find broader support, like mandating standardized labels on recycling and composting bins to help people more effectively sort their used containers.”xlviii Still, a huge barrier exists to passing this type of legislation, in that, “[a]s the supply of oil and gas swells but global demand shows signs of leveling off, plastic production is one of the fossil fuel industry’s most promising areas of growth.”xlix That relationship is problematic, touting the Break Free From Plastic Pollution Act 2020 as “a confrontation with the plastic industry.” l Yet, this battle is even greater than imagined because “Big Plastic isn’t a single entity,” but rather a “corporate supergroup: Big Oil meets Big Soda—with a puff of Big Tobacco” which “combines lobbying and public relations might of all three.” li
WHAT SHOULD STATES DO?
Undermining local action in cities and states across the country, the “plastic industry” works to “protect profits from regulation.” lii In City of Laredo v. Laredo Merchants Association, the Supreme Court of Texas found that a city ordnance banning plastic bags was preempted by the state’s Solid Waste Disposal Act (SWDA).liii This case hinged “on a 1993 law that prevented cities or counties from banning a container or package.” liv Two state legislators later attempted to pass an amendment that would exempt “plastic bags” from the definition of “container or package” with no success.lv The Texas Court ruling “brought down 11 other local Texas bag bans.”lvi According to records from the Texas Ethics Commission, during the 2019 legislative session, “[c]hemical companies spent between $840,000 and $1.4 million on lobbyists” with the Dow Chemical Company on record as spending “the highest amount of any chemical company — between $275,000 and $459,000.” As of August 2019, seventeen states have laws pre-empting local plastic bans (Idaho, North Dakota, Colorado, Arizona, Texas, Minnesota, Iowa, Oklahoma, Missouri, Wisconsin, Michigan, Indiana, Tennessee, Mississippi, Pennsylvania, Delaware, and Florida)lvii
It seems as though the best way to instigate change is through grassroots activism and work through nonprofits. Recently, the Earth Island Institute filed suit in California state court to hold companies liable for plastic pollution.lviii This filing is “believed to be the first of its kind.”lix The Institute “charged that the companies have implied that recycling can solve the pollution problem, when they knew that recycling systems are inadequate to handle the deluge of plastic waste.” lx Listed as defendants in this case are household names: Crystal Geyser Water Company, Clorox, Coca Cola, Pepsico, Nestle USA, Mars, Colgate Palmolive and Procter and Gamble. among others.lxi The complaint alleges theories under public nuisance, breach of express warranty, failure to warn, design defect and negligence.lxii The case was scheduled to be heard in California Superior Court in San Mateo County; however, the defendants have filed for removal to federal court.lxiii The proceedings are ongoing, but may face delays due to COVID 19 precautions.
In light of the Coronavirus, California’s Govenor has signed an Executive Order to suspend their plastic bag ban for 60 days.lxiv Other states and cities have also organized similar action.lxv This is a crucial time for the advancement of national legislation on single use plastics. Local measures have been thwarted by state legislatures and a national approach will unify the country and bring about change. This is happening right now. The Break Free From Pollution Act is a comprehensive bill that should be passed. Even if it is not, the language of the proposed bill should be improved, duplicated, and promoted by grassroots activist and nonprofits. Provided to local, state and national actors, the language captured in this bill can assist in changing the status quo. Recycling has failed. Plastic pollution will only get worse. The United States needs to adopt a ban on single use plastics.
i Parker, Laura, An Old School Plan to Fight Plastic Pollution Gathers Steam, National Geographic, (Feb. 24, 2020) https://www.nationalgeographic.com/science/2020/02/old-school-plan-to-fight-plastic-pollution-gathers-steam/
iii Dickinson, Tom, How Big Oil and Big Soda Kept a Global Environmental Calamity A Secret For Decades, Rolling Stone, (March 3, 2020), https://www.rollingstone.com/culture/culture-features/plastic-problem-recycling-myth-big-oil-950957/.
x Rose, Allyssa. A Solution to Plastic Pollution? Using International Law to Shape Plastic Regulation in the United States, 26 Hastings W.-N.W. J. Env.L.& Pol’y 127 (Winter 2020).
xi Phase-out of lightweight plastic bags, Wikipedia, https://en.wikipedia.org/w/index.php?title=Phase-out_of_lightweight_plastic_bags&oldid=937249426 (last visited Feb. 11, 2020).
xii Parker, Laura, Canada Aims to Ban Single-Use Plastics by 2021, National Geographic, (June 11, 2019)
https://www.nationalgeographic.com/environment/2019/06/canada-single-use-plastics-ban-2021/#close (citing to https://www.unenvironment.org/resources/report/single-use-plastics-roadmap-sustainability).
xiii Britton, Biana, Ban On Single Use Plastic Items Approved By European Parliament, CNN, (Mar 28, 2019), https://www.cnn.com/2019/03/28/europe/eu-single-use-plastics-ban-intl-scli/index.html.
xvi Guy, Jack, The Final Straw: England Bans Plastic Items From April 2020, CNN, (May 22, 2019), https://www.cnn.com/2019/05/22/uk/uk-straw-ban-scli-intl-gbr/index.html.
xviii Westcott, Ben, Canada Plans To Ban ‘Harmful’ Single-Use Plastics by 2021, CNN, (Jun 10, 2019), https://www.cnn.com/2019/06/10/americas/canada-single-use-plastics-intl-hnk/index.html.
xix Id. at 3.
xxiii Government of Canada, Zero Plastic Waste: Canada’s Actions (Last modified: Feb 12, 2020), https://www.canada.ca/en/environment-climate-change/services/managing-reducing-waste/zero-plastic-waste/canada-action.html
xxiv Rose, Allyssa. A Solution to Plastic Pollution? Using International Law to Shape Plastic Regulation in the United States, 26 Hastings W.-N.W. J. Env.L.& Pol’y 127 (Winter 2020).
xxv National Conference of State Legislatures, State Plastic and Paper Bag Legislation, (Jan. 24, 2020), https://www.ncsl.org/research/environment-and-natural-resources/plastic-bag-legislation.aspx.
xxvi Rose, Allyssa. A Solution to Plastic Pollution? Using International Law to Shape Plastic Regulation in the United States, 26 Hastings W.-N.W. J. Env.L.& Pol’y 127 (Winter 2020).
xxvii Id. at 128.
xxviii Id at 128.
xxix Id at 129.
xxxii Dickinson, Tom, How Big Oil and Big Soda Kept a Global Environmental Calamity A Secret For Decades, Rolling Stone, (March 3, 2020), https://www.rollingstone.com/culture/culture-features/plastic-problem-recycling-myth-big-oil-950957/.
xxxiv Pinon, Natasha, The Recycling Rules That Could Actually Make a Huge Difference But Are Doomed, Mashable, (Feb. 12, 2020), https://mashable.com/article/break-free-from-plastic-pollution-act/.
xxxvDickinson, Tom, How Big Oil and Big Soda Kept a Global Environmental Calamity A Secret For Decades, Rolling Stone, (March 3, 2020), https://www.rollingstone.com/culture/culture-features/plastic-problem-recycling-myth-big-oil-950957/.
xxxvii Break Free From Plastic Pollution Act of 2020, H.R. 5845, 116th Cong, www.congress.gov/
xl Corkery, Michael, Federal Bill Seeks To Make Companies Responsible For Plastic Waste, New York Times, (Feb 11, 2020), https://www.nytimes.com/2020/02/10/business/recycling-law.html.
xlii Break Free From Plastic Pollution Act of 2020, H.R. 5845, 116th Cong https://www.govtrack.us/congress/bills/116/hr5845. See also, https://www.govtrack.us/congress/bills/116/s3263
xliii Break Free From Plastic Pollution Act of 2020, H.R. 5845, 116th Cong. https://www.congress.gov/bill/116th-congress/house-bill/5845/committees?r=84&s=1
xlv Break Free From Plastic Pollution Act of 2020, H.R. 5845, 116th Cong., https://www.congress.gov/bill/116th-congress/house-bill/5845/cosponsors?searchResultViewType=expanded&KWICView=false
xlviBreak Free From Plastic Pollution Act of 2020, S. 3263, 116th Cong https://www.congress.gov/bill/116th-congress/senate-bill/3263/committees
xlvii Pinon, Natasha, The Recycling Rules That Could Actually Make a Huge Difference But Are Doomed, Mashable, (Feb. 12, 2020), https://mashable.com/article/break-free-from-plastic-pollution-act/.
xlviii Corkery, Michael, Federal Bill Seeks To Make Companies Responsible For Plastic Waste, New York Times, (Feb 11, 2020), https://www.nytimes.com/2020/02/10/business/recycling-law.html.
liii City of Laredo v. Laredo Merchs. Ass’n, Supreme Court of Texas, 550 S.W. 3d 586, June 22, 2018.
liv Gibbons, Sarah, See The Complicated Landscape of Plastic Bag Bans In The United States, National Geographic, (Aug 15, 2019), https://www.nationalgeographic.com/environment/2019/08/map-shows-the-complicated-landscape-of-plastic-bans/.
lv Korte, Lara, Plastic Bags Are Killing Horses and Cows Across The State, Texas Tribune, (Aug 14, 2019), https://www.texastribune.org/2019/08/14/texas-wont-approve-bans-plastic-bags-which-can-be-fatal-livestock/
lvi Gibbons, Sarah, See The Complicated Landscape of Plastic Bag Bans In The United States, National Geographic, (Aug 15, 2019), https://www.nationalgeographic.com/environment/2019/08/map-shows-the-complicated-landscape-of-plastic-bans/.
lviii Rainey, James, Group Sues To Hold Coca Cola, Pepsi, And Others Liable For Plastics Fouling California Waters, Los Angeles Times, (Feb 26, 2020), https://www.latimes.com/environment/story/2020-02-26/coca-cola-pepsi-other-big-companies-face-plastic-pollution-lawsuit.
lxiv McGreeves, Patrick, Coronavirus Prompts Gov. Gavin Newsom to Suspend California’s Plastic Bag Ban, Los Angeles Times (Apr 23, 2020), https://www.latimes.com/california/story/2020-04-23/coronavirus-suspension-california-plastic-bag-ban-gavin-newsom.
lxv Budryk, Zak, Multiple Citites Suspend Plastic Bag Bans due to Coronavius Concerns, The Hill, (Apr 8, 2020), https://thehill.com/policy/energy-environment/491858-multiple-cities-suspend-plastic-bag-bans-due-to-coronavirus.