The stage has been set for a fresh legal showdown over plastics, and the industry is on guard.
The strategy — which hinges on the industry long knowing plastics recycling could never be a viable, long-term solution to a burgeoning global pollution concern but continuing to peddle the lie anyway — mirrors highly effective attacks on tobacco and “forever chemicals” manufacturers.
“There’s a value, for political purposes, to use litigation as a tactic,” Plastics Industry Association (PLASTICS) CEO Matt Seaholm said. “So I think we have to fully anticipate that there will unfortunately be more litigation in the future.”
Bracing for a wave of lawsuits from advocacy groups and state attorneys general, plastic producers are investing heavily in controversial approaches to boosting stagnant recycling rates to repair the public’s growing distrust.
California Attorney General Rob Bonta recently told Reuters he is “weeks” away from releasing his office’s findings from a two-year probe into the roles Exxon Mobil and other petrochemical or fossil fuel companies have played in pushing a “decades-long campaign of deception.” A spokesperson for Bonta’s office recently confirmed there are no further updates.
Last year, New York Attorney General Letitia James brought charges against PepsiCo, alleging its plastic pollution created a public nuisance and health risks the company failed to warn the public about, all while promoting misleading statements about the efficacy of recycling.
Bethany Davis Noll, who works with state attorneys general on clean energy and climate work as executive director of New York University School of Law’s State Energy & Environmental Impact Center, said “it’s highly likely” we’ll see an uptick in similar lawsuits, adding that “plastics has been a space [attorneys general have] been working on more and more.”
She said New York’s complaint is “a classic case of public nuisance, and I’m certain that other states are looking at the same thing.”
Pat Parenteau, emeritus professor and senior fellow for climate policy at the Vermont Law and Graduate School, agreed, adding “it will take some time” before other states catch on, since larger states like New York and California “have the most muscle behind them.”
Bonta’s and James’ actions each mark the first time a state attorney general has launched an investigation or sued, respectively, over the feasibility of plastics recycling. But it’s not the first time plastics have been scrutinized in court.
Spike in recyclability claims lawsuits
Litigation over the issue dates back to 1974, according to NYU’s Plastics Litigation Tracker, when the Natural Resources Defense Council first argued the then-2-year-old Clean Water Act required EPA to limit plastic discharge as a pollutant.
Since then, at least 50 cases have been brought on a range of issues, including industry fights against state or local laws banning single-use plastic grocery bags or other plastics.
The past five or so years saw a significant uptick in litigation over brands marking products or packaging as recyclable even though there is little chance it would actually get processed and turned into something new.
Connecticut’s attorney general sued Reynolds Consumer Products in 2022 alleging the company falsely advertised its Hefty trash bags as recyclable when they weren’t accepted at any state recycling facilities. A year later, Minnesota’s attorney general brought similar complaints against Reynolds as well as Walmart. Both cases are still pending.
Environmental advocacy groups including Sierra Club, the Last Beach Cleanup and Earth Island Institute have filed misinformation complaints against producers of single-use plastic bottles, to name a few examples.
Such cases “have a mixed record in court,” Parenteau said in an email.
“Judges are looking for clearer regulatory standards for what constitutes misrepresentation, false advertising or greenwashing as opposed to aspirational goals or puffery, which isn’t actionable,” he continued.
As of now, there is no federal legal definition for “recyclable.” The Federal Trade Commission’s “Green Guides” offer some guidance on recyclability or recycled content claims, but they’re not enforceable.
“The latest FTC Green Guides can help but greater detail is required,” Parenteau said.
Greater detail may soon be coming, as the FTC was slated to release updates to the 12-year-old guidelines this year. FTC spokesperson Mitchell Katz said there is “no update yet” on when.
EPA estimates around 9 percent of all plastics are recycled each year, with other researchers pinning that number closer to 5 percent. Whether a plastic product can be recycled depends on the type of plastic, its color, density, leftover residue or other contaminants, feasibility of end markets, sortation technology, collection efforts and so on.
The plastic industry maintains the plastic pollution problem can be solved by investing in and scaling up recycling efforts. Environmentalists are less hopeful, pointing to decades with little to no improvements on overall plastic recycling rates, mechanical recycling’s current limitations and the large quantities of microplastics.
A brushed-up playbook
In February, the Center for Climate Integrity released a report detailing a decadeslong history laying the groundwork for legal action against companies making petrochemicals and their trade associations.
“It is certainly a novel theory that we are exploring … with the target now becoming the petrochemical industry itself,” said Alyssa Johl, vice president and general counsel for CCI and co-author of the report. “I absolutely see this as something that is going to really take off.”
The report follows the “coordinated campaign” from the 1950s to present day on how the plastic industry “sold the myth of recycling in order to sell more plastics to consumers, all the while they’d had long-standing knowledge that plastic recycling would never be a true and effective solution to plastic waste,” Johl said.
It’s the same playbook used in major cases over tobacco, opioids and PFAS, aka “forever chemicals”: Producers knew of the harms and concealed them.
Efforts were largely led by the American Plastics Council, which the American Chemistry Council absorbed in 2002, and the Society of the Plastics Industry, which rebranded as the Plastics Industry Association, or PLASTICS, in 2010. The two trade associations represent petrochemical companies, historically covering members such as DuPont, Dow, Occidental and Eastman.
“We disagree with pretty much all of [the report],” said Ross Eisenberg, vice president of ACC’s Plastics Division. “We are firmly focused on solving a problem which is, at its core, a very solvable problem. Dwelling on the past is not really our business model here.”
Seaholm, of PLASTICS, called the report’s approach “perplexing.”
“Maybe there were some people that didn’t feel like the technology was ever going to get there, but now we’re seeing it come to fruition,” Seaholm said.
What comes next
Seaholm and Eisenberg, also the president of ACC’s public-facing advertising sector America’s Plastic Makers, are at the forefront of the industry’s push to regain control of the narrative, shifting it back toward recycling and away from source reduction targets and bans.
PLASTICS launched a campaign last year called “Recycling Is Real,” which has committed more than a million dollars toward promotional videos and congressional lobbying efforts.
Large petrochemical and fossil fuel companies have poured at least $18 billion toward improving recycling globally. Most of those investments hinge on scaling up “chemical recycling.”
Chemical recycling, often called “advanced” or “molecular” recycling, is an umbrella term for different technologies that use high heat or harsh chemicals to break hard-to-recycle plastics down to their chemical building blocks. The products of chemical recycling can then be used to make fuels or other polymers, like plastics.
If economically, technologically and environmentally feasible, adequate and widespread chemical recycling facilities would be the industry’s golden ticket out of potential liability.
But results haven’t panned out so far.
Only about a dozen chemical recycling facilities exist in the U.S., none of which is operating at promised capacity, according to a recent report from Beyond Plastics. As a number of plants have shut down in the past few years, researchers have found the processes to be costly, be energy intensive and yield mixed results. And health advocates worry about toxic emissions from the facilities and from fuel made from plastics.
Jan Dell, a chemical engineer who formerly worked as a corporate sustainability consultant before starting nonprofit the Last Beach Cleanup, said it will never work.
“Everybody wants to be given an easy answer, that they’ll figure out a magic way to do it,” said Dell, who also contributed to the CCI report. “But it’s just fiction upon fiction, because, ultimately, plastic is not recyclable. It’s not economically recyclable. It’s not technically recyclable.”
Dell is not alone. A group of more than 300 scientists from more than 50 countries urged in a letter to President Joe Biden that “we cannot recycle our way out of the problem.”
“The suggestion that plastics can be perpetually, safely, and sustainably recycled is not supported by independent science,” the letter says.
Seaholm countered, noting the “incredible amount of innovation that’s happening that allows for more recycled content to go into products.”
“We readily admit that we do not recycle enough and we want to recycle more,” he continued. “But is it doable? Is it feasible? Yes.”
In anticipation of increased litigation, Seaholm said PLASTICS and its members are conducting “a lot of research … to make sure that even if it’s not in litigation, we’ve got to have the necessary facts to back what we’re saying.”
PLASTICS and ACC both sued California Attorney General Bonta last week in hopes of keeping industry documents a secret amid his probe into petrochemical companies.
When asked if he believes there will be an increase in litigation over plastics recycling, Eisenberg of ACC said, “I hope not.”
“And I would discourage them from doing so,” he continued. “It’s not an effective tool to solve and modernize the infrastructure that we need to make products more circular,” which is the goal to eventually replace all virgin materials with recycled materials.
Dell, whose nonprofit has brought multiple claims over plastics recyclability to various courts, said she hopes to see more lawsuits.
“I believe there will be more because if society wants to have change, we’re going to have to sue,” she said.
