Vol. No. 53-2 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. 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. The plastic that is recycled is usually downcycled and transformed into lower value uses that are not suitable for further recycling. As a result, about 8 million tons of plastic waste leaches into the oceans every year, sometimes taking over 400 years to break down. Unfortunately, the plastic waste problem is only growing. Plastic production in the last fifteen years makes up half of all the plastic ever manufactured. 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.
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. Some estimations also rank the U.S. as the third largest contributor of total mismanaged plastic waste to the coastal environment. 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. The U.S. recycling rate has also stayed relatively low (9%) as compared to other global leaders such as Europe (30%) and China 25%).
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. 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.
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. 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. 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. It also sets a minimum 25% source reduction target and at least a 30% reuse and refill target by 2032. 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.
At the executive level, the Biden Administration issued section 207 of Executive Order 14057 the same month PCPA was introduced. 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. 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. The Department of the Interior is also set to phase out all single-use plastics products from federally managed lands by 2032. 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.
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. 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. However, the growth of citywide plastic bans has triggered many “preemption battles” between cities and states. Seventeen states have gone in the opposite direction, passing laws that prevent municipalities from enacting ordinances that ban plastic bags. These preemption statutes reserve the power to regulate plastic bags to the state.
The Texas Supreme Court has held that state law preempts local attempts at regulating plastic bags. 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. 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.” 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.
A few states have begun adopting extended producer responsibility (EPR) legislation to combat plastic waste. 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. 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. 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. Plastic producers must also contribute $5 billion over the next ten years to fund recycling and single-use plastic packaging reduction.
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. 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. Future negotiations will continue to work out technical measures and rules.
Nations are currently split as to whether to emphasize recycling and waste management or to prioritize reducing plastic production. 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. This could include bans on certain types of plastics. Other countries, including Saudi Arabia and the U.S., are pushing for a treaty that focuses on plastic recycling and voluntary commitments. 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.
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.
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.
 Plastics, Am. Chemistry Council, https://www.americanchemistry.com/chemistry-in-america/ chemistry-in-everyday-products/plastics (last visited Aug. 3, 2023).
 Roland Geyer et al., Production, Use, and Fate of All Plastics Ever Made, 3 Sci. Advances, no. 7, 2017, at 1, https://www.science.org/doi/epdf/10.1126/sciadv.1700782.
 Ruth Jebe,
 Laura Parker, The World’s Plastic Pollution Crisis Explained, Nat’l Geographic (June 7, 2019), https://www.nationalgeographic.com/environment/article/plastic-pollution.
 Kara Lavender Law et al., The United States’ Contribution of Plastic Waste to Land and Ocean, 6 Sci. Advances, no. 44, 2020, at 1, https://www.science.org/doi/epdf/10.1126/sciadv.abd0288
 Id. at 3–4 (demonstrating that mismanaged waste consists of littered, illegally dumped, and exported waste to nations with inadequate waste management systems).
 Geyer, supra note 2, at 3.
 Id.; 40 C.F.R. § 261.4(b)(1) (2022).
 Press Release, Jeff Merkley, U.S. Sen., Or., Booker, Huffman, Merkley, Lowenthal Introduce Legislation to Address Plastic Production Crisis (Dec. 1, 2022), https://www.merkley.senate.gov/news/ press-releases/booker-huffman-merkley-lowenthal-introduce-legislation-to-address-plastic-production-crisis.
 Megan Quinn, New Federal Bill Aims to Cut Plastics Production, Favoring Reuse and Refill Strategies, WasteDive (Dec. 5, 2022), https://www.wastedive.com/news/congress-protecting-communities-from-plastics-bill/637933/.
 Id. (citing S. 5163, 117th Cong. § 5 (2022)).
 Id. (citing S. 984, 117th Cong. (2021)). The Break Free from Plastic Pollution Act also stalled during the 116th Congress. Anne Idsal et al., Efforts to Regulate Plastic Pollution Likely to Increase in 2023, pillsbury (Jan. 17, 2023), https://www.pillsburylaw.com/en/news-and-insights/regulate-plastic-pollution-increase-2023.html (citing H.R. 5845, 116th Cong. (2020)).
 See Exec. Order No. 14,057, 3 C.F.R. § 63.4480 (2022); S. 984.
 Idsal et al., supra note 17; 3 C.F.R. § 63.4480.
 Idsal et al., supra note 17.
 Id.; Request for Public Comment on Report on Microfiber Pollution, 87 Fed. Reg. 56,633 (Sept. 15, 2022). Plastic microfibers—tiny plastic fragments shed from synthetic clothing materials like polyester and rayon—are the most prevalent type of microplastic found in the environment. What You Should Know About Microfiber Pollution, Env’t Prot. Agency (July 28, 2020), https://www.epa.gov/trash-free-waters/what-you-should-know-about-microfiber-pollution.
 See State Plastic Bag Legislation, Nat’l Conf. of State Legislatures,
 Emma Platoff, Texas Supreme Court Strikes Down Laredo’s Plastic Bag Ban, Likely Ending Others, Tex. Trib. (June 22, 2018, 10:00 AM), https://www.texastribune.org/2018/06/22/texas-supreme-court-rules-bag-bans/ (citing City of Laredo v. Laredo Merchs. Ass’n, 550 S.W.3d 586, 598 (Tex. 2018)).
 City of Laredo, 550 S.W.3d at 589 (citing Tex. Health & Safety Code § 361.0961(a)); Tex. Health & Safety Code § 361.0961. In 2014, the Texas Attorney General’s office issued a non-binding opinion that argued that bag bans are legal so long as they are not adopted for solid waste management. Platoff, supra note 28.
 Tex. Health & Safety Code § 361.0961(a); City of Laredo, 550 S.W.3d at 589.
 Jason Mack, City Council Revisits Plastic Bag Ordinance, Laredo Morning Times (Nov. 8, 2022), https://www.lmtonline.com/news/article/City-Council-revisits-plastic-bag-ordinance-17568740.php. In response to the Texas Supreme Court ruling, the city of Brownsville repealed its initial bag ordinance and adopted another one that had language specifying it does not pertain to any bag, container, or package that is used for solid waste management purposes. Brownsville has not received any challenges to this new ordinance in the four years since, and Laredo is considering a similarly adjusted bag ordinance. Id.; see also Platoff, supra note 28.
 See Peggy Otum et al., Focus on Plastics Intensifies in California with New Legislation, WilmerHale (July 25, 2022), https://www.wilmerhale.com/en/insights/blogs/ESG-Epicenter/20220725-focus-on-plastics-intensifies-in-california-with-new-legislation.
 Fact Sheet: Extended Producer Responsibility, Org. for Econ. Co-Operation and Development, https://www.oecd.org/env/waste/factsheetextendedproducerresponsibility.htm (last visited Aug. 3, 2023).
 Otum et al., supra note 32 (explaining that Maine, Oregon, and Colorado passed similar EPR legislation in the past few years).
 Hiroko Tabuchi, The World Is Awash in Plastic. Nations Plan a Treaty To Fix That., The N.Y. Times (Mar. 2, 2022), https://www.nytimes.com/2022/03/02/climate/global-plastics-recycling-treaty.html; Megan Quinn, UN Plastics Treaty Negotiations Show Initial Stances of Activists, Industry and Governments, WasteDive (Dec. 7, 2022), https://www.wastedive.com/news/un-plastics-treaty-reduction-wwf-ciel-gaia/638083/.
 Quinn, supra note 37.
 Id.; Joe Lo, Battle Lines Drawn in Talks on New Plastics Treaty, Climate Home News (Feb. 12, 2022), https://www.climatechangenews.com/2022/12/02/battle-lines-drawn-in-talks-on-new-plastics-treaty/.
 Manuela Andreoni, The Plastic Problem, The N.Y. Times (Jan. 6, 2023), https://www.nytimes.com/ 2023/01/06/climate/plastics-climate-pollution.html; see End Plastic Pollution by 2040, High Ambition Coal. to End Plastic Pollution, https://hactoendplasticpollution.org/ (last visited Aug. 3, 2023).
 Lo, supra note 40.
 Andreoni, supra note 41.
 Lo, supra note 40.