Topic: Solid 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.

Waste

From Red Lines to Tall Pines: Roadside Vegetation Buffers as an Environmental Justice Strategy

In January 2021, President Biden signed Executive Order 14008, which “created the first-ever White House Environmental Justice Advisory Council.”[1] In doing so, the Biden Administration brought renewed attention to a decades-old question: What is the most effective way to address the government’s continued mismanagement of land, air, and water in low-income communities and communities of color?[2] To date, thirteen states have also taken steps to establish offices and commissions with an eye toward pursuing environmental justice.[3]

While conversations about environmental justice are many and varied, pollution is a central theme. It has become increasingly clear that low-income communities and communities of color are disproportionately exposed to the harmful effects of environmental pollution.[4] What’s worse, this phenomenon was no accident—officials have repeatedly approved permits to locate facilities with major sources of pollution in Black and low-income neighborhoods.[5] In many cities, noisy and polluted highways stand as monuments to these historic injustices, and the surrounding residents are still forced live with the consequences of past siting decisions.[6] As state and federal officials show a renewed interest in finding ways to advance environmental justice initiatives, they could do worse than to focus their efforts on addressing roadside pollution.

The Human Cost of Living Near a Highway

The adverse impacts of roadway pollution on human health are well-documented.[7] This article’s scope is limited to the risks and harms of living in close proximity to the poor air quality and noise pollution that highways create in heavily populated areas.

Individuals who live and work close to a busy roadway are at a higher risk of developing illnesses related to air pollution exposure.[8] Our highways are designed to carry a high volume of traffic, and most of those cars are still burning fossil fuels and pumping exhaust into the air. Data from a 2020 study shows that transportation contributes to 27% of the greenhouse gas emissions in the U.S., and light-duty vehicles are responsible for over half of these transportation emissions.[9] Among those emissions, ozone, nitrous oxide, and a whole class of chemicals known as mobile-source air toxics (MSATs) have been measured in high concentrations within an area of up to 500m (approximately 1/3 mile) of a roadway.[10] Particulate matter is also of great concern because it is another byproduct of traffic that can impair respiratory function.[11] The presence of these chemicals as ambient air pollution correlates with increased frequency of cardiovascular and respiratory disease, impaired lung function, and overall mortality.[12] Studies have found that majority-White neighborhoods are associated with less ambient air pollution exposure than majority-Hispanic neighborhoods.[13] A wealth of data also suggests that communities of color are also generally more likely to be located near highways than White communities.[14] If the task at hand is to address the environmental factors that disproportionately impact certain communities, taking steps to clean up the air they’re breathing is a great place to start.

Noise pollution presents a separate set of risks and challenges for those who live within earshot of a major roadway. The constant whir of cars and trucks rushing past, during all hours of the day and night, is first and foremost an annoyance. But as our understanding of the effects of elevated noise levels advances, we are beginning to see that there may also be health risks associated with noise pollution; for example, research has linked noise pollution to an increased incidence of heart attacks.[15] Noise pollution has also been linked to sleep disruption, decreased academic performance, and even shortened life expectancies for those who live close to the source.[16]

Roadside Vegetation Buffers as a Multi-Purpose Mitigation Measure

A variety of technologies and strategies have been proposed and implemented to combat the harmful impacts of vehicular traffic through urban areas, including air filtration, noise-reduction walls, and even plans to move entire highways underground.[17] While they are effective and certainly valuable tools to utilize as we seek to remedy environmental injustices, they are often expensive and can take years to implement.[18] Such mitigation strategies pose a major disruption to the lives and routines of the very people who are supposed to benefit from them.[19] It is therefore essential that we look for ways to mitigate these harms quickly and effectively. The installation and expansion of roadside vegetation buffers (RVBs) has emerged as a promising option and should be leaned on more heavily as a means for making incremental progress toward environmental equity.

In recent years, as the effects of living with vehicular air pollution have become better understood, a number of studies have concluded that plants and trees are some of the most effective tools for cleaning up the mess that cars leave behind. It is important to consider certain species-specific characteristics; deciduous trees, which lose their leaves in fall and winter, are not as effective when their branches are bare. Therefore, there is a preference toward coniferous trees whose efficacy does not respond to the seasons.[20] Additionally, the effectiveness of a given RVB setup in clearing pollutants from the air is largely determined by the height and density (or thickness) of the vegetation buffer.[21] Taller vegetation tends to force polluted air upward, rather than directly outward from the roadway; once at a higher altitude, the pollutants are more easily dispersed to a lower concentration.[22]

While the height of a barrier serves to reduce the concentration of pollutants through dispersion, the goal of density is to reduce pollution by directly filtering the air.[23] Plants consume carbon dioxide through photosynthesis, and their porous surfaces allow them to pull some other toxic compounds out of the air as it passes through them.[24] Certain kinds of vegetation can store airborne chemicals permanently, while others act more as a physical filter for particulate matter by providing an adherent surface that particles can temporarily stick to before being washed into the soil or blown away by the wind during a storm.[25] The effect of these mechanisms is to reduce the amount of pollution in the air while it is close to the road, so that it is less heavily contaminated when it flows outward and reaches the lungs of people living nearby.

Considering height and density together allows for a high degree of flexibility in the design of an RVB, so that it can be optimized to meet the needs of a given location by combining taller plants like trees with shorter, denser shrubs.[26] The EPA’s research into RVB design is ongoing, but it has found that when properly implemented, a combination vegetation buffer can reduce particle pollution by up to 50%, and other pollution by as much as 30%.[27]

Insulation from the high levels of noise that highways produce is another important consideration in reducing the harm of highways on our communities. This has been traditionally accomplished by erecting walls as sound barriers between roadways and residential properties.[28] In addition to their ability to clean the air, RVBs show promise as another way to fight noise pollution: “If it is high enough, wide enough, and dense enough that it cannot be seen through,” roadside vegetation is capable of reducing traffic noise by half.[29] It may not always be feasible to introduce enough tree coverage to achieve that level of noise reduction, but in such instances vegetation can be combined with man-made sound barriers in order to reap the benefits of both sound reduction and air filtration.[30]

There may be no more elegant of a solution to the problem of traffic pollution than the introduction and/or expansion of RVBs. Trees, shrubs, and other vegetation are highly effective at removing pollution from the air, and certain plants can also provide insulation to dampen traffic noise. RVBs are cheaper and can be installed more quickly than some of the more advanced technologies emerging today, and in situations where those more intensive solutions are already being considered, RVBs can serve as an intermediary mitigation step to begin improving conditions immediately until those next steps are implemented.[31] To write them off as a stop-gap measure would be a mistake, however, because nothing could be farther from the truth. In fact, perhaps the greatest strength of RVBs as a mitigation strategy, particularly when held up against technological solutions, is that they will never be rendered obsolete. As electric cars become increasingly commonplace, and traffic no longer necessitates harmful emissions, the trees will continue to improve and beautify the spaces they occupy.[32]

Increased vegetation provides a wide array of additional benefits to a community as well, from the visual appeal of more greenery to relief from the “heat island effect.”[33] And in addition to reducing pollution and acting as carbon sinks, long stretches of vegetation along our urban corridors also provide refuge for local wildlife and act as a habitat for woodland bird populations.[34] Runoff pollution from road surfaces is beyond the scope of this article, but it is worth noting that the soil in RVBs acts as a natural filter, trapping some potentially toxic compounds close to the roadway and preventing them from leaching into local watersheds.[35]

NEPA’s Role in the Path Forward

Since the National Environmental Policy Act (NEPA) became law on January 1, 1970, federal agencies have been required to consider the environmental impacts of the projects they pursue and the decisions they make.[36] On February 11, 1994, President Clinton signed Executive Order 12898 which further directs each agency to “make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.”[37] In the cover memorandum for that order, President Clinton directly invokes NEPA as a means to that end:

Each Federal agency shall analyze the environmental effects, including human health, economic and social effects, of Federal actions, including effects on minority communities and low-income communities, when such analysis is required by the National Environmental Policy Act of 1969… Each Federal agency shall provide opportunities for community input in the NEPA process, including identifying potential effects and mitigation measures in consultation with affected communities…[38]

Taken together, these documents establish a useful framework for the federal government to put a greater emphasis on environmental justice in future projects. Fifty years on, federal agencies are well-acquainted with the requirements of NEPA and the process of crafting environmental impact statements, making them a convenient vehicle for spreading the principles of environmental justice to federal projects across the country. Major interstate highways, themselves products of federal initiatives, fall squarely within the scope of this initiative to pay more attention to community impacts.[39] It is impossible to know whether this collaborative mindset would lead to the creation of more RVBs across the country, but in a way that is precisely the point: acknowledging the people whose quality of life is at stake, and allowing them a role in deciding which mitigation measures would serve them best.

Conclusion

For the millions of Americans who live near major roadways, the formation of an environmental justice council at the White House is of little comfort. Their health will remain at risk until action is taken, and justice should not mean continuing to suffer while politicians wring their hands in Washington. NEPA set the stage for environmental justice to be a major consideration in our roadway construction projects, and in the decades since its value in this fight has become increasingly clear. Where mitigation measures are being considered, roadside vegetation buffers stand as a proven strategy which can alleviate some of the worst health effects of living close to major roadways. They clean toxic chemicals and particulate matter out of the air, dampen the noise that heavy traffic produces, and can be customized to fit the needs of a given space. They are relatively low-cost and can be implemented more quickly than the alternatives, allowing communities that have long borne more than their fair share of environmental harm to finally breathe a little easier. As the saying goes: The best time to start planting these trees was thirty years ago; the second-best time is today.

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.

Alex Brenner is a member of the Class of 2023 at The University of Texas School of Law. Alex joined TELJ in Fall 2021 and currently serves as a Senior Editor. He grew up in Connecticut and completed his undergraduate degree at Brandeis University, where he majored in Neuroscience, Biology, and Psychology. After graduation he will be moving to Seattle, WA, to practice environmental law and get lost in the Cascades.

Waste

How the Law Regarding Fashion Waste is Developing

Waste in Fashion

When people think of environmental issues, they often first think of climate change. The fashion industry is often overlooked. However, the environmental footprint of fashion is gaining recognition around the world, starting in West Europe. 

“Fast fashion has become the dominant mode of production and consumption” in the fashion industry.[1] The industry consists of three stages: take (the harvesting of raw materials), make (the production of garments), and waste (the wearing and subsequent disposal of garments).[2] The waste generated can be split into two categories, “(1) pre-consumer wastes (such as fiber, yarn, and fabric processing wastes, in addition to the sewn product manufacturing wastes), and (2) post-consumer wastes or end-of-life clothing wastes (discarded at the end of clothes’ useful life).”[3] This waste includes unsold clothes and fabric chemical processing.[4] 

Clothing production and consumption has environmental impacts including land pollution due through fertilizer and pesticide use, water pollution resulting from clothing dyes, air pollution as a by product of the toxic gases that produced during manufacturing, marine pollution due to microfibers that are generated when washing clothes, and biodiversity loss due resulting from fabric particles polluting in the ocean.[5] 

It has been found that the “fashion industry emits 1.2 billion tons of greenhouse gases; releases half a million tons of microplastics into the sea, uses 132 million tons of coal, 900 million cubic meters of water, and a quarter of the world’s toxic chemicals.”[6] “130 billion garments are produced annually, of which 80 billion are sold, yet less than a single percent are recycled.”[7] Further, textile waste is a primary contributor to the rapid depletion of land-fill capacity.[8] The fashion industry effects not only 4% of global carbon emissions, but also impacts water resources, land pollution, and animal biodiversity loss. 

French Law

            France passed an anti-waste law in 2020 that bans designer clothes and luxury goods companies from that destroy unsold or returned items.[9] It requires “producers, importers and distributors, including online firms such as Amazon, to donate unsold non-food goods except those that post a health or safety risk.” [10] This law was put into effect on January 1, 2022.[11] One issue associated with the definition in the French Consumer Code is that the luxury brand’s biggest markets are in the U.S. and China, both of whom do not have bans. “In addition, the Consumer Code has been modified to strongly encourage sale without packaging (bags or other types or containers), or with reusable containers. Retail businesses with a sales area of more than 400 million in revenue, have an obligation to make reusable packaging available to consumers.” [12]

Further, France passed a carbon score law to introduce “mandatory labeling of goods and services.”[13] “According to a set of data released by L’Agence de la Transition é Cologique, the fashion industry is the second largest source of pollution in the world, with an average consumption of 2,700 liters of water per T-shirt (equivalent to 70 showers) and 11,000 liters of water per pair of jeans (equivalent to 285 showers).”[14] France‘s 2021 policy also establishes requirements for labeling and a ban on advertising relating to the marketing or promotion of fossil fuels starting in August 2022. [15] This policy attempts to prompt companies to provide more sustainable products by empowering consumers to make informed decisions regarding the impact of their purchases on the environment. 

France also enacted one of the world’s first laws regarding greenwashing. The law prohibits the inaccurate “use of any wording on a product, its packaging, or in advertising promoting a product or service, indicating that the product, service, or activity of the manufacturer is carbon-neutral or has no negative impact on the climate.”[16] It establishes a legal framework through which companies can be held accountable for misleading claims regarding environmental impacts. Fines can include up to “80% of the false promotional campaign cost, a correction on billboards or in the media, and a 30-day clarification on the company website.”[17] 

State of California

While the United States has yet to pass any legislation directed at the fashion industry’s impact on climate change, California and New York are beginning to indicate an interest in such regulation. Although not directed at the fashion industry’s environmental impact, California has recently enacted legislation designed to curb other harmful practices of the industry. California’s Senate Bill 62, the Garment Worker Protection Act, was signed into law on September 28, 2021. This bill was designed to cover up a loophole in AB 633, enacted in 1999, which “was praised for its aim to prevent wage theft in California’s sweatshop-infested garment industry, the home of the vast majority of garment manufacturing in the U.S.”[18] A major loophole was that it focused on individuals who have been damaged, “by failure of a garment manufacturer, jobber, contractor, or subcontractor to pay wages or benefits”; the acts of a retailer were exempt and that is how many companies were able to bypass the rule.[19] SB 62 states that all garment workers should earn an hourly wage, not less than applicable minimum wage, instead of what was in practice before, workers earning money for what each item of clothing they produce.[20] “A 2016 study by the UCLA Labor Center found that Southern California garment workers earned an average of $5.15 an hour, less than half the minimum wage at the time.”[21] The burden is now be shifted to brand guarantors, contractors, and garment manufacturers to show they did not violate wage laws.[22] 

This new law holds fashion brands legally responsible for the harm done for employees’ unpaid wages and for the manufacturing industry production in general. Garment worker working conditions in California are characterized as terrible. Tzul, a worker in California, described it by stating, “In the summer it’s like hell, and not to mention the steam from the iron is suffocating. It’s hard to describe how it is.”[23] Further, when COVID-19 was at its peak, the factory is full of workers who work in close quarters and cannot work from home. Not only does this law attempt to introduce more regulations on the fashion industry and hope to prevent excess production in manufacturing, but it helps workers’ rights and in recognizing humanity of the workers, “who helped build the fifth-largest economy of the world.”[24]

While not directed at the environmental impacts of the fashion industry, this legislation signals that the state of California is monitoring the industry and is willing to act to mitigate perceived harmful practices. This could foreshadow legislation similar to that recently enacted in France. 

State of New York 

            Assembly Bill A8352/S7428, Fashion Sustainability and Social Accountability Act (Fashion Act), was introduced in New York state on January 7, 2022. If passed by both the Senate and House, it “would require transparency of at least 50 percent of the goods sold from raw materials to shipping regarding their environmental impact.”[25] This would be the “first state in the country to pass legislation that will effectively hold the biggest brands in fashion to account for their role in climate change.”[26] The bill would require companies to disclose where they have the biggest social and environmental impact, make plans to reduce their environmental impact, and disclose their material production volumes.[27] Companies would have 12 months to comply with mapping the 50 percent of the goods sold, 18 months for impact disclosures and, if found to be in violation, would be fined up to 2 percent of their annual revenues.[28] These fines would go to a new Community Fund, used for environmental justice projects in New York, and the attorney general would publish an annual list of companies found to be noncompliant.[29] 

            This legislation reflects the first government regulation of the environmental impact of the fashion industry in the United States, and could serve as a model for other states to follow.

Assessment of Recent Regulatory Action  

California, New York, and France are major producers of clothing. A recent study assessing major national initiatives promoting sustainable fashion anticipates that the different bodies of legislation will have different results. New York State’s regulation is likely to have a large effect on waste treatment and use of secondary raw materials, and a moderate effect on reduction with the source (waste minimization), garment production, and garment design. [30] The California SB 62 bill is likely to have a large effect on garment production and is likely to have a moderate effect on reduction within the source (waste minimization).[31] The French law banning destruction of unsold clothing takes the tie for lead, likely to have large effect on waste treatment and reduction within the source (waste minimization) and likely to have a moderate effect on fashion consumption, garment design, and use of secondary raw materials.[32] Both the New York law and France’s law are likely to have a large effect on 2 out of 6 categories and are likely to have a moderate effect on 3 out of 6, with a total for both of moderate to large effects in 5/6 categories (California bill has a 2/6 moderate and large effect). 

Environmental Concerns and Ways to Help Make a Change

            Typically, the environmental impact of low-cost clothing is not felt at the location of purchase but the location of where the clothing is produced, buried, or incinerated.[33] 

            One way to make a change would be making the broad policy choice to impose a carbon tax on the industry. Conceptually, a carbon tax would be “specifically focused on the greenhouse gas emissions released into the air, establishing a direct connection between the tax and the damage to the environment.”[34] With respect to the fashion industry, such a policy would likely target, “the fashion corporations responsible for greenhouse gas emissions in their production process, rather than a tax applied directly on consumers, notwithstanding their carbon contribution.”[35] Such a policy would incentivize garment makers’ greater use of sustainable practices.

Consumers are the other half of the equation. A study by Sustainability noted that educational campaigns to reduce consumption, among various policy alternatives, are likely to the highest positive impact.[36] Once consumers are more educated on what shapes fashion waste, they are more likely to participate in campaigns such as the “pay up” campaign,[37] a successful consumer-driven campaign that was “created in response to the refusal of fashion corporations to pay textile factories for goods.”[38]  This refusal to pay occurred when the epidemic, COVID-19, hit Europe and the US. During this time is when fashion corporations chose to cancel pre-crisis orders, forcing “factories to incur 40 billion dollars in losses.”[39] “[T]hrough social media, many corporations have pledged to pay for orders…and returned to the factories a total of USD 27 billion.”[40]

Fashion regulation is in its infancy in the US, and, on a broader public level, fashion waste is an emerging environmental concern. For the most part, new laws are of relatively limited scope, applying only to certain companies. The New York bill, for instance, would apply to companies with at least “$100 million in sales annually to include luxury giants LVMH, Kering; American mass producers like PVH, fast-fashion behemoths H&M and Zara parent company Inditex and sports giants Nike and Puma.”[41]. The fashion industry lacks the targeted regulation of other industries with similar environmental footprints, such as chemicals manufacturing. While these two newer laws in the US and the ones in France are helpful, they are most remarkable for the fact that they reflect a new era of likely much larger legal landscape to manage the environmental impacts of the fashion industry, a landscape in which consumers are likely to play a significant role.

Claudia Gutierrez is a rising 3L from Harlingen, Texas. She attended the University of Texas at Rio Grande Valley and joined TELJ her first year of law school. She hopes to work in environmental law upon graduation and has been fascinated with environmental concerns about the sea level rise and increased temperatures in the RGV. Additionally, she will be interning with Save our Springs Alliance during the summer of 2022.

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.

Solid Waste

Important remaining steps in the EPA’s PFAS Action Plan

The Environmental Protection Agency’s (EPA) current approach to regulating per- and polyfluoroalkyl substances (collectively, PFAS) neither sets a drinking water standard for these two common PFAS nor does it declare them to be hazardous substances.^[1] Detectable levels of PFAS in the human body are associated with numerous negative health outcomes, including serious forms of cancer.^[2] However, the EPA has made modest strides to regulate individual PFAS. In 2018, it announced a comprehensive plan to address PFAS pollution.^[3]

Background on PFAS

PFAS refers to a class of per- and polyfluoroalkyl substances.^[4] The chemical properties of PFAS —specifically the chains of strong carbon-fluorine bonds—makes them highly resistant to water, oil, and heat.^[5] These properties make PFAS useful in a wide variety of commercial and industrial applications, including in non-stick pans and electronics manufacturing.^[6] However, because of their strong carbon-fluorine bonds, PFAS can bioaccumulate and are highly environmentally persistent.^[7] When a chemical is environmentally persistent, it degrades very slowly or not at all, extending the period in which the chemical can affect human and environmental health.^[8] For example, PFAS were detected on an Air Force base twenty years after firefighting foam containing PFAS was used there.^[9]

Because of their wide use and environmental persistence, PFAS contamination is widespread.^[10] In the United States, it is estimated that 99% of people have PFAS in their blood, based on representative blood serum testing.^[11] PFAS have also been detected in locations as remote as the Arctic Circle and the Tibetan Plateau.^[12] People are exposed to PFAS in a variety of ways.^[13] For instance, non-stick cookware and water- and stain-resistant textiles are an avenue for household exposure.^[14] Workers in industrial facilities are exposed through common industrial processes or from fire suppression systems.^[15] Firefighting foam containing PFAS is a source of contamination for groundwater, as are other point sources such as landfills.^[16] Plants and animals that bioaccumulate PFAS are a source of exposure when humans eat them.^[17] Even breastmilk is an exposure vector for PFAS in infants.^[18]

PFAS are associated with a wide variety of negative health effects; however, different varieties and concentration levels of PFAS have different effects on the body.^[19] Notably, PFAS can affect puberty, birth weight, immune functioning, and thyroid activity, and they can even cause liver disease and testicular and kidney cancer.^[20] Unfortunately, “for most [varieties of] PFAS[,] there is limited or no toxicity information.”^[21]

Previous EPA Actions Regarding PFAS

Despite widespread contamination and the risk of environmental persistence and bioaccumulation, regulating PFAS has not been straightforward. The EPA successfully eliminated the production of two PFAS chemicals—perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)—through voluntary phase-out programs.^[22] Under the EPA’s PFOA Stewardship program, eight manufacturers and processors met the program goal of eliminating PFOA manufacture and use by 2015.^[23] A similar PFOS phase-out started in 2000 after the scope of exposure was discovered.^[24] Although PFOA and PFOS are still detectable in serum samples, the concentration has decreased substantially between 1999–2016.^[25]

Although it was successful, the PFOA Stewardship program was voluntary and addressed only one out of hundreds of PFAS.^[26] In contrast with the PFOA Stewardship program, the current plan to address PFAS is more comprehensive and significantly wider in scope.

PFAS Action Plan

In February of 2019, the EPA released its PFAS Action Plan (the Action Plan) which details the administration’s approach to address PFAS regulation challenges.^[27] EPA Administrator Andrew Wheeler characterized the Action Plan as “the most comprehensive cross-agency plan ever to address an emerging chemical of concern” and declared nearly a year after its release that the EPA was “aggressively” implementing the plan.^[28]

The Action Plan includes approximately twenty agency actions including: setting short- and long-term research goals, communicating with the public and other stakeholders regarding PFAS risks, developing of toxicity assessments for seven additional PFAS, setting national drinking water standards for PFOA and PFOS, and declaring PFOA and PFOS “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).^[29] While the EPA has already met some of the Action Plan goals such as setting guidelines for groundwater quality, ^[30] the agency has not taken two critical actions: setting drinking water standards and declaring PFOA and PFOS “hazardous substances.” ^[31]

EPA has failed to set adequate drinking water standards for PFOS and PFOA.

The EPA met its deadline to set guidelines for groundwater quality, but it has not established PFOA and PFOS drinking water regulations.^[32] Critically, the EPA has not set a Maximum Contaminant Level (MCL), an enforceable standard under the Safe Drinking Water Act (SDWA), which would empower the EPA and states to address PFOA and PFAS.^[33]

In December 2019, the EPA released its interim recommendation on groundwater contaminated with PFOA or PFOS.^[34] It eventually finalized the goal for remediation of groundwater sources at 70 parts per trillion (ppt).^[35] The EPA’s decision is consistent with its 2016 Lifetime Drinking Water Health Advisory (2016 Health Advisory) at 70 ppt for PFOA and PFOS.^[36] However, if the EPA relies on the 2016 Health Advisory when setting the MCL, the standard may be insufficient to protect human health. ^[37]

The Agency for Toxic Substances and Disease Registry (ATSDR) created a toxicological assessment of PFOA and PFOS that suggested the 70 ppt guideline for PFOA and PFOS would be insufficient to protect human health. ^[38] The ATSDR assessment estimated the maximum exposure to PFOA and PFOS that would not cause any harmful effects.^[39] In creating the 2016 Health Advisory and setting the 70 ppt guideline, the EPA factored in a maximum safe exposure estimate for PFOA and PFOS, which were 6.7 and 10—higher than those estimated by the ATSDR.^[40] The ATSDR estimate was similar to the estimate used by New Jersey when defining its pending state-wide MCL.^[41] New Jersey set its MCL at 14 ppt and 13 ppt for PFOA and PFOS, respectively.^[42] The ATSDR assessment suggests that the appropriate level of PFOS and PFOA is significantly lower than the EPA is currently suggesting.^[43]

Some states have set their own MCLs for PFOA and PFOS which are significantly more strict than the EPAs Health Advisory figure.^[44] The MCL for PFOA and PFOS are 12 ppt and 15 ppt in New Hampshire, 10 ppt and 40 ppt in California, 10 ppt and 10 ppt in New York, 8 ppt and 16 ppt in Michigan, and 14 ppt and 13 ppt in New Jersey under a pending rule.^[45] Together with the ASTDR study, the trend among states suggests that 70 ppt would be an insufficient standard for drinking water despite the 2016 Health Advisory.^[46]

The EPA has failed to designate PFOA and PFOS “hazardous substances.”

Both the Action Plan and remarks by EPA Administrator Scott Pruitt at the PFAS Summit in 2018 expressed EPA’s intent to designate PFOA and PFOS as hazardous substances.^[47] The EPA’s Action Plan update, released in February of 2020, reiterated that it was moving forward in the process of designating PFOA and PFAS as hazardous substances.^[48]

Because PFOA and PFOS are not yet designated as hazardous substances, many affected communities have been unable to access the resources available under CERCLA, including private causes of action.^[49] For example, the Air Force has refused to clean-up contamination from PFOA- and PFOS-containing firefighting foam in Georgia, New Mexico, and Michigan because PFOA and PFOS are not hazardous substances as defined under CERCLA.^[50] The Navy successfully moved to dismiss a suit for medical costs in Pennsylvania by arguing that, because PFOA and PFOS were not hazardous substances, the plaintiff had no cause of action.^[51]

Legislative Actions Related to PFAS

The EPA has been working towards designating PFOA and PFOS hazardous substances since the 2018 PFAS Summit.^[52] In the meantime, legislators became impatient. In January of 2020, the United States House of Representatives passed the PFAS Action Act of 2019 (the PFAS Action Act).^[53] If the PFAS Action Act became law in its current form, it would designate PFOA and PFOS as hazardous substances, bypassing the administrative process that the EPA has delayed for the past two years.^[54] Additionally, the act would give the EPA five years to make a determination on designating the hundreds of remaining PFAS—a significant acceleration of the current regulation rate.^[55] The PFAS Action Act would also require the EPA to regulate the substances under the SDWA.^[56] While it has only been referred to the Senate Committee on Environment and Public Works, the current administration has expressed its opposition to the legislation.^[57] The Trump Administration rejected the PFAS Action Act as undermining the administrative processes built into CERCLA and other federal regulation.^[58]

Conclusion

The EPA has made some strides in addressing PFAS exposure in the United States. The PFOA Stewardship program successfully reduced the manufacture of PFOA, and the EPA has released groundwater standards for some PFAS levels. However, the EPA has not taken two critical steps in the Action Plan: setting MCLs for PFOS or PFOA and designating PFOS and PFOA as hazardous substances under CERCLA. Setting an MCL for PFOS and PFOA would create an enforceable standard under SDWA. Additionally, because PFOA and PFOS have not been designated hazardous substances, CERCLA and other remedial statutes remain out of reach for affected communities, and contaminated sites will continue to affect human and environmental health. PFAS can cause a variety of negative health effects including reduced immune functioning and cancer, and the EPA has not met the bold goals stated in the PFAS Action Plan.

Alisha Mehta is an attorney in the Environmental and Legislative section of Jackson Walker’s Austin office. She focuses on permitting and water matters, including real estate developers and special utility districts and counsels clients on transactional and regulatory issues before the Public Utility Commission of Texas.

Nicholas D. Ray is a second-year student at The University of Texas School of Law and is a Staff Editor of the Texas Environmental Law Journal.

By Alisha Mehta and Nicholas D. Ray

Solid Waste

Important remaining steps in the EPA’s PFAS Action Plan

The Environmental Protection Agency’s (EPA) current approach to regulating per- and polyfluoroalkyl substances (collectively, PFAS) neither sets a drinking water standard for these two common PFAS nor does it declare them to be hazardous substances.^[1] Detectable levels of PFAS in the human body are associated with numerous negative health outcomes, including serious forms of cancer.^[2] However, the EPA has made modest strides to regulate individual PFAS. In 2018, it announced a comprehensive plan to address PFAS pollution.^[3]

Background on PFAS

PFAS refers to a class of per- and polyfluoroalkyl substances.^[4] The chemical properties of PFAS —specifically the chains of strong carbon-fluorine bonds—makes them highly resistant to water, oil, and heat.^[5] These properties make PFAS useful in a wide variety of commercial and industrial applications, including in non-stick pans and electronics manufacturing.^[6] However, because of their strong carbon-fluorine bonds, PFAS can bioaccumulate and are highly environmentally persistent.^[7] When a chemical is environmentally persistent, it degrades very slowly or not at all, extending the period in which the chemical can affect human and environmental health.^[8] For example, PFAS were detected on an Air Force base twenty years after firefighting foam containing PFAS was used there.^[9]

Because of their wide use and environmental persistence, PFAS contamination is widespread.^[10] In the United States, it is estimated that 99% of people have PFAS in their blood, based on representative blood serum testing.^[11] PFAS have also been detected in locations as remote as the Arctic Circle and the Tibetan Plateau.^[12] People are exposed to PFAS in a variety of ways.^[13] For instance, non-stick cookware and water- and stain-resistant textiles are an avenue for household exposure.^[14] Workers in industrial facilities are exposed through common industrial processes or from fire suppression systems.^[15] Firefighting foam containing PFAS is a source of contamination for groundwater, as are other point sources such as landfills.^[16] Plants and animals that bioaccumulate PFAS are a source of exposure when humans eat them.^[17] Even breastmilk is an exposure vector for PFAS in infants.^[18]

PFAS are associated with a wide variety of negative health effects; however, different varieties and concentration levels of PFAS have different effects on the body.^[19] Notably, PFAS can affect puberty, birth weight, immune functioning, and thyroid activity, and they can even cause liver disease and testicular and kidney cancer.^[20] Unfortunately, “for most [varieties of] PFAS[,] there is limited or no toxicity information.”^[21]

Previous EPA Actions Regarding PFAS

Despite widespread contamination and the risk of environmental persistence and bioaccumulation, regulating PFAS has not been straightforward. The EPA successfully eliminated the production of two PFAS chemicals—perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)—through voluntary phase-out programs.^[22] Under the EPA’s PFOA Stewardship program, eight manufacturers and processors met the program goal of eliminating PFOA manufacture and use by 2015.^[23] A similar PFOS phase-out started in 2000 after the scope of exposure was discovered.^[24] Although PFOA and PFOS are still detectable in serum samples, the concentration has decreased substantially between 1999–2016.^[25]

Although it was successful, the PFOA Stewardship program was voluntary and addressed only one out of hundreds of PFAS.^[26] In contrast with the PFOA Stewardship program, the current plan to address PFAS is more comprehensive and significantly wider in scope.

PFAS Action Plan

In February of 2019, the EPA released its PFAS Action Plan (the Action Plan) which details the administration’s approach to address PFAS regulation challenges.^[27] EPA Administrator Andrew Wheeler characterized the Action Plan as “the most comprehensive cross-agency plan ever to address an emerging chemical of concern” and declared nearly a year after its release that the EPA was “aggressively” implementing the plan.^[28]

The Action Plan includes approximately twenty agency actions including: setting short- and long-term research goals, communicating with the public and other stakeholders regarding PFAS risks, developing of toxicity assessments for seven additional PFAS, setting national drinking water standards for PFOA and PFOS, and declaring PFOA and PFOS “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).^[29] While the EPA has already met some of the Action Plan goals such as setting guidelines for groundwater quality, ^[30] the agency has not taken two critical actions: setting drinking water standards and declaring PFOA and PFOS “hazardous substances.” ^[31]

EPA has failed to set adequate drinking water standards for PFOS and PFOA.

The EPA met its deadline to set guidelines for groundwater quality, but it has not established PFOA and PFOS drinking water regulations.^[32] Critically, the EPA has not set a Maximum Contaminant Level (MCL), an enforceable standard under the Safe Drinking Water Act (SDWA), which would empower the EPA and states to address PFOA and PFAS.^[33]

In December 2019, the EPA released its interim recommendation on groundwater contaminated with PFOA or PFOS.^[34] It eventually finalized the goal for remediation of groundwater sources at 70 parts per trillion (ppt).^[35] The EPA’s decision is consistent with its 2016 Lifetime Drinking Water Health Advisory (2016 Health Advisory) at 70 ppt for PFOA and PFOS.^[36] However, if the EPA relies on the 2016 Health Advisory when setting the MCL, the standard may be insufficient to protect human health. ^[37]

The Agency for Toxic Substances and Disease Registry (ATSDR) created a toxicological assessment of PFOA and PFOS that suggested the 70 ppt guideline for PFOA and PFOS would be insufficient to protect human health. ^[38] The ATSDR assessment estimated the maximum exposure to PFOA and PFOS that would not cause any harmful effects.^[39] In creating the 2016 Health Advisory and setting the 70 ppt guideline, the EPA factored in a maximum safe exposure estimate for PFOA and PFOS, which were 6.7 and 10—higher than those estimated by the ATSDR.^[40] The ATSDR estimate was similar to the estimate used by New Jersey when defining its pending state-wide MCL.^[41] New Jersey set its MCL at 14 ppt and 13 ppt for PFOA and PFOS, respectively.^[42] The ATSDR assessment suggests that the appropriate level of PFOS and PFOA is significantly lower than the EPA is currently suggesting.^[43]

Some states have set their own MCLs for PFOA and PFOS which are significantly more strict than the EPAs Health Advisory figure.^[44] The MCL for PFOA and PFOS are 12 ppt and 15 ppt in New Hampshire, 10 ppt and 40 ppt in California, 10 ppt and 10 ppt in New York, 8 ppt and 16 ppt in Michigan, and 14 ppt and 13 ppt in New Jersey under a pending rule.^[45] Together with the ASTDR study, the trend among states suggests that 70 ppt would be an insufficient standard for drinking water despite the 2016 Health Advisory.^[46]

The EPA has failed to designate PFOA and PFOS “hazardous substances.”

Both the Action Plan and remarks by EPA Administrator Scott Pruitt at the PFAS Summit in 2018 expressed EPA’s intent to designate PFOA and PFOS as hazardous substances.^[47] The EPA’s Action Plan update, released in February of 2020, reiterated that it was moving forward in the process of designating PFOA and PFAS as hazardous substances.^[48]

Because PFOA and PFOS are not yet designated as hazardous substances, many affected communities have been unable to access the resources available under CERCLA, including private causes of action.^[49] For example, the Air Force has refused to clean-up contamination from PFOA- and PFOS-containing firefighting foam in Georgia, New Mexico, and Michigan because PFOA and PFOS are not hazardous substances as defined under CERCLA.^[50] The Navy successfully moved to dismiss a suit for medical costs in Pennsylvania by arguing that, because PFOA and PFOS were not hazardous substances, the plaintiff had no cause of action.^[51]

Legislative Actions Related to PFAS

The EPA has been working towards designating PFOA and PFOS hazardous substances since the 2018 PFAS Summit.^[52] In the meantime, legislators became impatient. In January of 2020, the United States House of Representatives passed the PFAS Action Act of 2019 (the PFAS Action Act).^[53] If the PFAS Action Act became law in its current form, it would designate PFOA and PFOS as hazardous substances, bypassing the administrative process that the EPA has delayed for the past two years.^[54] Additionally, the act would give the EPA five years to make a determination on designating the hundreds of remaining PFAS—a significant acceleration of the current regulation rate.^[55] The PFAS Action Act would also require the EPA to regulate the substances under the SDWA.^[56] While it has only been referred to the Senate Committee on Environment and Public Works, the current administration has expressed its opposition to the legislation.^[57] The Trump Administration rejected the PFAS Action Act as undermining the administrative processes built into CERCLA and other federal regulation.^[58]

Conclusion

The EPA has made some strides in addressing PFAS exposure in the United States. The PFOA Stewardship program successfully reduced the manufacture of PFOA, and the EPA has released groundwater standards for some PFAS levels. However, the EPA has not taken two critical steps in the Action Plan: setting MCLs for PFOS or PFOA and designating PFOS and PFOA as hazardous substances under CERCLA. Setting an MCL for PFOS and PFOA would create an enforceable standard under SDWA. Additionally, because PFOA and PFOS have not been designated hazardous substances, CERCLA and other remedial statutes remain out of reach for affected communities, and contaminated sites will continue to affect human and environmental health. PFAS can cause a variety of negative health effects including reduced immune functioning and cancer, and the EPA has not met the bold goals stated in the PFAS Action Plan.

Alisha Mehta is an attorney in the Environmental and Legislative section of Jackson Walker’s Austin office. She focuses on permitting and water matters, including real estate developers and special utility districts and counsels clients on transactional and regulatory issues before the Public Utility Commission of Texas.

Nicholas D. Ray is a second-year student at The University of Texas School of Law and is a Staff Editor of the Texas Environmental Law Journal.