Vol. No. 53-2 Waste

Waste

The State of Plastic

The Plastic Waste Landscape

Modern life depends on plastic. It seals our food, insulates our homes, and clothes our bodies.[1] However, as plastic degrades and becomes waste, the ubiquitous material is also creating one of the greatest pressing environmental challenges today. The life cycle of plastic is not as cyclical as some might think—from 1950 to 2015, 12% of plastic waste was incinerated, 79% discarded, and only 9% recycled.[2]   The plastic that is recycled is usually downcycled and transformed into lower value uses that are not suitable for further recycling.[3] As a result, about 8 million tons of plastic waste leaches into the oceans every year, sometimes taking over 400 years to break down.[4] Unfortunately, the plastic waste problem is only growing. Plastic production in the last fifteen years makes up half of all the plastic ever manufactured.[5] In fact, from 1950 to 2015, plastic production increased from 2.3 million tons to 448 million tons, and is expected to double by 2050.[6]

The United States Plastics Regulatory Regime

The United States plays a critical role in resolving the plastic waste problem. The U.S. generates more plastic waste than any other country, with forty-two million metric tons in 2016.[7] Some estimations also rank the U.S. as the third largest contributor of total mismanaged plastic waste to the coastal environment.[8] In 2016, the U.S. contributed up to 1.45 million metric tons of plastic waste, which may represent as much as a 400% increase from a 2010 estimate.[9] The U.S. recycling rate has also stayed relatively low (9%) as compared to other global leaders such as Europe (30%) and China 25%).[10]

RCRA and Federal Solid Waste Policies

The U.S. plastic regulatory scheme is largely focused on solid waste and waste management. The Resource Conservation and Recovery Act (RCRA) is the principal federal law regulating solid waste disposal, storage, and treatment.[11] While the statute establishes the framework for a national system of solid waste control, household waste and much of municipal solid waste are exempted from RCRA coverage.[12]

Nevertheless, numerous federal activities have attempted to change the U.S. plastic waste trajectory. The Protecting Communities from Plastics Act (PCPA) was introduced on December 1, 2022, by Democratic lawmakers to address “the plastic production crisis that is fueling climate change and perpetuating environmental injustice” and to prioritize a transition away from plastics.[13] The bill would reduce the U.S. economy’s reliance on certain single-use plastics, establish new national targets for plastic source reduction, and create federal incentives to expand reusable and refillable systems.[14] Specifically, PCPA authorizes the Environmental Protection Agency (EPA) to create federal targets for plastic source reduction and reuse for single-use plastic packaging and foodservice ware by the end of 2027.[15] It also sets a minimum 25% source reduction target and at least a 30% reuse and refill target by 2032.[16] However, industry opposition and strong partisan politics may prevent the bill’s passage into law. Indeed, a bill in 2021 backed by congressional Democrats that included similar source reduction goals failed to pass.[17]

At the executive level, the Biden Administration issued section 207 of Executive Order 14057 the same month PCPA was introduced.[18] The executive order directs federal agencies to reduce waste, support the recycled products market, and initiate a potential General Services Administration rulemaking to reduce single-use plastic packing in federal procurement.[19] Numerous federal agency actions are also working concurrently to reduce plastic pollution. The EPA released its National Recycling Strategy last fall and earmarked $275 million for solid waste recycling grant programs.[20] The Department of the Interior is also set to phase out all single-use plastics products from federally managed lands by 2032.[21] Last year, the National Oceanic and Atmospheric Administration released its draft Report on Microfiber Pollution which will outline a path for federal agencies to address microfiber pollution once finalized.[22]

State-Level Solid Waste Policies

There are few laws regulating plastic waste on a state level. The most prominent state regulations are plastic bag bans; however, only eight states have banned single-use plastic bags, and enforcement often occurs through civil actions and fines.[23] In the absence of statewide regulations, many municipalities have enacted bans on some kind of plastic, with over 350 U.S. cities adopting a plastic bag ban.[24] However, the growth of citywide plastic bans has triggered many “preemption battles” between cities and states.[25] Seventeen states have gone in the opposite direction, passing laws that prevent municipalities from enacting ordinances that ban plastic bags.[26] These preemption statutes reserve the power to regulate plastic bags to the state.[27]

The Texas Supreme Court has held that state law preempts local attempts at regulating plastic bags.[28] The city of Laredo adopted a ban on single-use bags in 2014 that was subsequently challenged by the Laredo Merchants Association for violating the Texas Solid Waste Disposal Act.[29] The Act says that local governments may not “prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law.”[30] The lawsuit reached the Texas Supreme Court, which struck down Laredo’s plastic bag ban, holding that state law on solid waste disposal pre-empted the local ordinance.[31]

A few states have begun adopting extended producer responsibility (EPR) legislation to combat plastic waste.[32] EPR is a concept where producers bear a greater degree of responsibility for the environmental impact of their goods throughout the products’ life cycle, including impacts from material sourcing, the production process, and subsequent use and disposal.[33] California is the fourth state to adopt an EPR bill into law that shifts much of the plastic-reducing burden from consumers to industry, but it may be the most significant.[34] The legislation not only requires an overall reduction in single-use plastic production, but it also obliges producers of certain single-use products to reduce production by 25% by weight and 25% by plastic component source by 2032.[35] Plastic producers must also contribute $5 billion over the next ten years to fund recycling and single-use plastic packaging reduction.[36]

United Nations Treaty

On March 2, 2022, United Nations representatives from 175 nations committed to crafting a legally binding global agreement to combat the exploding plastic pollution problem by 2024.[37] The first two of five planned negotiation meetings have since occurred, and stakeholders anticipate the treaty will include many detailed regulations that will affect plastics operations and management practices.[38] Future negotiations will continue to work out technical measures and rules.[39]

Nations are currently split as to whether to emphasize recycling and waste management or to prioritize reducing plastic production.[40] Fifty nations have formed the High Ambition Coalition to End Plastic Pollution, a union of countries that want a global agreement with plastic production limits and binding targets for every nation that adopts it.[41] This could include bans on certain types of plastics.[42] Other countries, including Saudi Arabia and the U.S., are pushing for a treaty that focuses on plastic recycling and voluntary commitments.[43] This kind of proposed treaty would be “bottom-up” like the Paris Agreement, in which nations are given latitude to develop their own plans and create their own targets.[44]

Conclusion

The U.S. is in a unique position to make a significant impact on plastic pollution as one of the largest global contributors to plastic waste. However, the current national plastic regulatory regime is largely disjointed. RCRA exempts hazardous household waste which has created pre-emption battles between municipalities and states over plastic bans. Pending bills aimed at plastic pollution reduction also seem unlikely to become law in the current partisan political environment. Nonetheless, several federal and state developments in plastic waste reduction have gained steam with President Biden’s Executive Order 14057, numerous federal agency actions, and several state EPR acts. Additionally, U.S. participation in the UN negotiations to create a legally binding global agreement by 2024 creates an opportunity for the U.S. to effectuate real change in the current plastic waste landscape.

Amanda Halter is managing partner of the Houston office of the international law firm of Pillsbury Winthrop Shaw Pittman, a member of the firm’s Environmental & Natural Resources practice section and co-leader of the firm’s Crisis Management team. Amanda helps companies resolve environmental liabilities and negotiate compliance conditions, as well as manage financial and reputational losses associated with a crisis. Her experience includes a diverse array of environmental regulatory, litigation and crisis matters, including contamination investigations and remedial actions, natural resource damages assessments and claims, environment, health and safety compliance counseling, mass toxic tort actions, permitting and planning for large-scale industrial projects, and project impacts mitigation and restoration strategies. Amanda is a native of Houston, a graduate of Rice University and The University of Texas School of Law.

Yuyan Pu is a 2L from just outside of Philadelphia in Berwyn, Pennsylvania She studied economics and sociology at Johns Hopkins University. Yuyan joined TELJ her 1L year and will be at the San Francisco and Washington, D.C. offices of Baker Botts during the summer of 2023.