Environmental, Natural Resources, & Energy Law Blog
Will We Ever Rid Ourselves of the Plastic Problem? - Elizabeth Pabjanek
In the middle of the Pacific Ocean, amassing an area twice the size of Texas, you will find a veritable soup of plastic debris. Ranging from large objects to tiny particles of plastic, this collection of marine debris is being drawn together by the massive North Pacific Subtropical Gyre in an area also known as the Pacific trash vortex. And it’s not alone. While the Pacific Ocean has in fact two distinct collections of marine debris, there have been other such areas recently discovered in the South Pacific Ocean and the North Atlantic. And it all just keeps getting bigger.
Alas, national and international efforts aimed at addressing this overwhelming waste and plastic pollution in our oceans may not live up to their potential because some nations are failing to focus on the root of the problem. While the EU is directing its efforts to tackling single use plastics and production, the U.S. is instead focusing on recycling, research, and cleanup, thereby formulating solutions that would require the continued use of plastic and its resulting waste. Although the U.S.’s post-production approach is an important step in the right direction, it’s the production of the plastics in the first place that needs to be addressed. Responsibility for the life cycle of plastic shouldn’t be on the backs of consumers to make sure to recycle their products and purchase ecofriendly options when accessible, which incidentally does little to nothing in addressing the root cause of the issue. Rather, the onus lies with the billion-dollar plastic industry that created this global dependency in the first place.
Plastics pollution is an ever-increasing problem. As the second largest generator of plastic waste in the world, the United States is producing 37.83 million tons of plastic pollution per year. Only China is ahead of us in a statistic where being in the top does not equate to accolades or a gold medal. From litter such as beverage bottles, straws, cups and plates, single-use bags, food wrappers, and cigarette butts, to fishing gear such as nets that have been lost, discarded, or abandoned from boats, the impacts from plastics are wreaking havoc not only in our oceans but also on our own health. Marine life can get caught in the debris and discarded gear, and the animals themselves can also ingest the plastics, mistaking the smaller debris for food. Microplastics, which are plastics less than 5mm in size partly resulting from larger plastic debris degrading into smaller pieces, are especially harmful. These microplastics can end up in the animal’s digestive tract and further contaminate the marine wildlife, becoming dispersed throughout the body. According to a 2016 UN report, over 800 animal species were contaminated with plastic either by entanglement or ingestion. Of these 800 species, 220 were found to have ingested microplastic debris.
What does this mean for us as humans? Considering that global seafood per capita consumption is over 20 kg/year with 7 kg annual consumption in the U.S., seafood is an important source of sustenance for many people. If marine life is ingesting microplastics, then these plastic particles are likely to become part of human consumption as well.
As the most common form of marine debris, plastics end up in the oceans from a variety of land and ocean-based sources. In addition to lost or abandoned fishing gear, plastic debris can enter the water from streams and storm drains as well as being swept away by rain and wind. Every year, more than 14 million tons of plastic ends up in the ocean. Accounting for around 80% of all marine debris, plastic has been found not only in surface waters but also far below in the deep-sea sediments. Plastic pollution is an ever present, growing threat to our oceans ecosystems, our food sources, our coastal economies, and our health.
With the mounting negative impacts of plastic pollution in our oceans, many countries around the world have enacted varying forms of legislation to address the problem of plastics. The European Union, for example, is leading the charge with its Directive on single-use plastics. Through this Directive, the EU is working to “prevent and reduce the impact of certain plastic products on the environment, in particular the marine environment, and on human health.”
The EU Directive on single-use plastics became effective on July 2, 2019.  Through this Directive, the EU is addressing 10 different single-use plastic products (SUPs) which the Directive defines as products used once, or for a short period of time, before they are discarded. The Directive applies a different measure to each of the 10 SUPs which have been specifically tailored for effectiveness while also considering available and affordable sustainable alternatives. The 10 items addressed by the Directive are: cotton bud sticks (cotton swabs); cutlery, plates, straws and stirrers; balloons and sticks for balloons; food containers; cups for beverages; cigarette butts; plastic bags; packets and wrappers; and wet wipes and sanitary items. If there are sustainable alternatives to an SUP that are easily available and affordable, the Directive bans that SUP from entering the markets of EU Member States. This ban also applies to food and beverage containers made of expanded polystyrene, and on all products made of oxo-degradable plastic.
The EU Directive also addresses other SUPs, focusing on limiting their use through a number of different measures including: reducing consumption through awareness-raising measures, introducing design requirements such as a requirement that caps be connected to bottles, introducing labelling requirements that inform consumers about the plastic contents of the product along with disposal options to be avoided and the harm to nature if the products are littered in the environment, and introducing waste management and clean-up obligations for producers which includes Extended Producer Responsibility (EPR) schemes. In addition, the Directive includes specific targets such as a 77% collection target for plastic bottles up to 3 litres in size by 2025, increasing to 90% by 2029, and incorporating 25% of recycled plastic in PET beverage bottles by 2025, and 30% in all plastic beverage bottles by 2030.
With this comprehensive Directive, the EU is tackling the plastic pollution problem at its roots and leading the charge in focusing on reducing plastic use, increasing incentives to use available alternatives, and creating responsibility for production.
Like the EU, Australia is also tackling the plastics problem on a comprehensive scale. In 2021, Australia enacted the National Plastics Plan which focuses on increasing plastic recycling, finding alternatives to unnecessary plastics, and reducing the impact of plastic on the environment. Australia has set a target of having 100% reusable, recyclable, or compostable packaging by 2025, 70% of which will go on to be recycled again or composted. Problematic and unnecessary single-use plastics (SUPs) packaging will also be phased out by 2025.
Numerous other countries such as Sri Lanka, Chile, and South Africa have also stepped up to tackle the marine plastics problem. Sri Lanka has implemented a ban on single-use plastic products, while Chile has passed comprehensive SUPs laws that not only ban plastic bags and straws but also prohibit restaurants and eating establishments from providing single-use cutlery or containers. Chilean law further encourages bottle reuse by mandating that grocery and convenience stores display, sell, and also take back refillable bottles. South Africa is working on their beach cleanup programs, prioritizing action on tires and electronic waste while also addressing extended producer responsibility for plastic packaging.
In contrast to these initiatives by other countries, the efforts by the United States to tackle plastic pollution focus on clean-up, rather than production and use, and will be far less effective in resolving this critical problem. Signed into law in December 2020, the Save Our Seas 2.0 Act was passed to reauthorize the National Oceanic and Atmospheric Administration’s (NOAA) Marine Debris Program. The act promises to improve the domestic response to marine debris, incentivize international engagement to address the marine debris, and strengthen domestic infrastructure to prevent the creation of new marine debris. In addressing the prevention of new marine debris creation, the act directs the EPA to develop a strategy to improve waste management and recycling infrastructure including strengthening markets for recycling. Furthermore, the act provides for review of the use of plastic waste in roadways, bridges, and other infrastructure projects, as well as technology that converts plastic waste into other products such as chemicals, fuel, and energy. The act also will provide for review of the effects of microplastics on food supplies and drinking water sources.
While these endeavors are necessary to address the marine debris that is destroying our waters once it gets there, the US lacks legislation that directly tackles the plastics problem itself. Individual states and local governments are left with the herculean task of regulating plastics, resulting in a wide variety of policies and mandates that differ across the country. To complicate matters even more, several states have a preemption law that bans local governments from enacting effective legislation. For example, Laredo, a city in Texas, instituted a ban on plastic bags, but this ban was struck down by the Texas Supreme Court in 2018 as conflicting with state solid waste management laws.
Oregon, on the other hand, recently passed the Plastic Pollution and Recycling Modernization Act during the 2021 legislative session. Effective January 1, 2022, over the next few years, the state will implement multiple changes to its recycling system. Recycling will be more user-friendly with expanded access to recycling services, recycling facility upgrades, but also Extended Producer Responsibility where producers and manufacturers of packaging, paper products, and food serviceware will be financially responsible for many of the improvements, helping to ensure that Oregon’s recycling efforts are successful.
Despite the disparate handling of plastic pollution legislation across the country, a new proposed federal bill, S.984, the Break Free from Plastic Pollution Act of 2021, rekindles hope the US will take a more comprehensive approach. This bill proposes to amend the federal Solid Waste Disposal Act by reducing the production and use of certain single-use plastic products and packaging. Additionally, the bill aims to improve the responsibility of producers in the life cycle of their consumer packaging and products as well as preventing pollution from those items from entering into both the human and animal food chains and our waterways. If passed, S.984 could result in real, tangible change across the nation. It just has to pass first.
The overwhelming and ever-increasing amount of waste and plastic pollution in our oceans requires an approach that manages not only existing waste and debris, but also prevents the influx of new single use plastic waste into the stream of commerce in the first place. This dual approach is the most effective way to solve this problem. By passing the Break Free from Plastic Pollution Act of 2021, the United States can join the EU and other nations in implementing successful legislation, effectively tackling plastic waste and pollution at its source. After all, it is only by addressing plastic pollution at the root of the problem, namely its creation and lifecycle, that the necessary, permanent, and effective changes can occur. Our ocean ecosystems, our food sources, our coastal economies, and our own health depend on it.
 The North Pacific Subtropical Gyre is a large system of rotating ocean currents, like slow-moving whirlpools, that circulate ocean waters but also draws in the marine pollution. https://oceanservice.noaa.gov/podcast/mar18/nop14-ocean-garbage-patches.html
 https://ec.europa.eu/environment/topics/plastics/single-use-plastics_en Oxo-degradable plastics are conventional plastic materials containing artificial additives that break down the plastic into smaller pieces, however, it is not biodegradable. The pieces are potentially harmful and remain in the environment. The EU banned oxo-degradable plastic due to a lack of consistent evidence about the speed of its breakdown and fears that the false claims end up misleading consumers. https://www.european-bioplastics.org/eu-takes-action-against-oxo-degradable-plastics/#:~:text=They%20are%20conventional%20plastic%20materials,and%20endanger%20recycling%20and%20composting.
 https://ec.europa.eu/environment/topics/plastics/single-use-plastics_en . Extended producer responsibility is an environmental policy approach that holds producers accountable for the lifecycle of their product. Responsibility is shifted from governments or municipalities to the producers themselves which encourages incorporation of environmental concerns throughout the product development and production. https://ec.europa.eu/environment/archives/waste/eu_guidance/introduction.html
 https://ec.europa.eu/environment/topics/plastics/single-use-plastics_en . PET or PETE is the abbreviation for polyethylene terephthalate. PET is a versatile and strong lightweight plastic that is used for packaging beverages and food such as soft drinks, juices, and water. In the chasing arrows recycling symbol, PET products are identified with the number “1”. http://www.petresin.org/news_introtoPET.asp
https://www.awe.gov.au/environment/protection/waste/plastics-and-packaging; The Plan also includes an action for the government to work with industry in phasing out certain problematic plastics. The Australian Packaging Covenant Organisation (APCO) worked with industry on these problems and provided guidance to help businesses navigate the Plan. The APCO defines “unnecessary plastic packaging” as that which “can currently be reduced or substituted with non-plastic fit-for-purpose alternatives and/or can be eliminated entirely without compromising the consumer’s access to the product, inability to meet health or safety regulations, or causing undesirable environmental outcomes. We note that there may be necessary case-by-case exemptions for packaging required for occupational, health and safety standards, including packaging regulated for specific industry use such as therapeutic and hazardous goods. “ https://documents.packagingcovenant.org.au/public-documents/Single-Use%20Problematic%20and%20Unnecessary%20Plastic%20Packaging
 https://www.unep.org/news-and-stories/story/sri-lanka-ban-single-use-plastics-it-joins-cleanseas-campaign-against-ocean . South Africa’s extended producer responsibility program, Section 18 Regulations to the National Environmental Management: Waste Act on 5 November 2020, came into effect on May 5, 2021. The new legislation mandates EPR for all producers and importers of packaging, requiring an EPR fee per tonne from any company or brand that makes or imports any form of plastic packaging for distribution. Additionally, the Government has set strict targets regarding yearly collection and recycling that must be met during the next five years. https://www.plasticsinfo.co.za/sustainability/extended-producer-responsibility/
116 P.L. 224, 134 Stat. 1072, 2020 Enacted S 1982, 116 Enacted S 1982, https://marinedebris.noaa.gov/about-our-program/marine-debris-act
City of Laredo v. Laredo Merchs. Ass’n, 550 S.W.3d 586 (Tex. 2018);
Break Free From Plastic Pollution Act of 2021, 117 S. 984, https://www.congress.gov/bill/117th-congress/senate-bill/984/all-info