I. INTRODUCTION
It would be no exaggeration to say that plastic pollution is among the (if not the) most ‘underrated’ man-made planetary crises in contemporary law. The global scale of plastic pollution is breath-taking;Footnote 1 its ubiquity is confirmed by the presence of plastic in air, water, soil and living organisms,Footnote 2 in diverse geographic areas including Antarctica,Footnote 3 the Sonoran Desert,Footnote 4 the Mariana Trench,Footnote 5 Mount Everest,Footnote 6 and even in human placenta.Footnote 7 The threats posed by plastic pollution to the environment and humans are well documented;Footnote 8 and the emerging technologies to prevent and collect marine plastic litter are unable to solve the plastic pollution crisis.Footnote 9 A comprehensive response is therefore needed to tackle this.
There is no global treaty focused on plastic pollution, nor is there a single country with a comprehensive policy aimed at curbing plastic pollution.Footnote 10 Instead, there are piecemeal regulatory measures that either restrict the movement and disposal of plastic waste or ban certain plastic products or chemical substances that plastic products are made from. Unsurprisingly, such measures have been unable to solve this crisis, as demonstrated by the ever-growing scale of plastic pollution and its further projected growth.Footnote 11 In March 2022, the United Nations (UN) Environment Assembly (UNEA) adopted a resolution that paves the way for the development of the first legally binding international instrument on plastic pollution.Footnote 12 However, the content of this treaty and how it would address plastic pollution is not yet known.
Against the background of a piecemeal regulatory response, courts have been playing an increasingly important role in plastic pollution governance. By early 2023, cases concerning plastic pollution had emerged in more than 30 countries around the world.Footnote 13 These cases have been driven by two opposing forces: on the one hand, individuals and communities affected by plastic pollution seeking court action against regulatory bodies and companies over inadequate response to this crisis; and, on the other hand, the plastics industry and other related industries, dissatisfied with the emerging regulatory measures on plastics seeking to challenge the legality of such measures in courts.
The growing number of court cases around the world demands a careful inquiry into their contribution to the development of the regulatory response to plastic pollution. As institutional actors, the judiciary has played a major role in protecting the environment and human health,Footnote 14 with litigation often pointing out various flaws in a regulatory scheme, or its unanticipated consequences.Footnote 15 Courts have thus been instrumental in, for example, defining the scope of human rights obligations with respect to environmental protection,Footnote 16 clarifying the authority of regulatory bodies to regulate pollution,Footnote 17 allowing victims of elusive environmental and health harms to receive compensationFootnote 18 and directing governments to adopt higher environmental protection standards.Footnote 19 Given the global scale of plastic pollution and the many threats that it poses, the response of the courts could be critical in tackling this crisis.
Individual cases concerning plastic pollution have already been mentioned by scholars in the context of plastic pollution governanceFootnote 20 and jurisdiction-specific developments.Footnote 21 However, until now, there has been no in-depth analysis of the role of courts in plastic pollution governance across multiple jurisdictions. This article fills this gap by analysing the main drivers behind the global wave of plastic pollution cases and the courts’ approaches to such claims in different jurisdictions. As this article demonstrates, courts around the world have been playing a major role in plastic pollution governance, and their role will continue to grow as countries develop a more comprehensive regulatory response.
The structure of this article is as follows. Section II discusses the threats posed by plastic pollution. Section III discusses the strengths and weaknesses of the key regulatory approaches. Section IV analyses the types of claims in plastic pollution cases and the courts’ approaches to them. Section V identifies the key areas where courts have contributed to developing regulatory responses and the main challenges to such contributions. Section VI summarises the findings.
II. THREATS POSED BY PLASTIC POLLUTION
‘Plastic’ is an umbrella term for a wide range of materials that are chiefly made from synthetic polymers—large molecules of hydrocarbon from fossil fuels, predominantly oil and natural gas.Footnote 22 The first synthetic polymers were developed in the late nineteenth century, followed by additives such as plasticisers, antioxidants, flame retardants and colourings that improved the properties of plastic products in the twentieth century.Footnote 23 However, it was not until the 1950s that large-scale production of everyday plastic items began.Footnote 24 The subsequent expansion of plastic production was dictated by the incredible versatility of plastic products, their strength and durability, light weight, resistance to corrosion, high thermal and electrical insulation properties and, of course, their low cost—a combination of highly desired properties that revolutionised the markets with a vast range of products.Footnote 25
Unfortunately, the benefits of plastic may now be outweighed by the threats posed by or associated with every aspect of its production, use and disposal. In the 2021 report, the UN Special Rapporteur on hazardous substances and human rights identified a wide spectrum of impacts on humans and the environment caused by the entire life cycle of plastics—extraction and refining of fossil fuels, production, transport, use and waste.Footnote 26 Notably, these impacts stem not only from plastic pollution itself, but also from other global crises that the life cycle of plastic contributes to, most notably, climate change and air pollution.Footnote 27
The global scale of plastic pollution is breathtaking. Of the 9.2 billion tonnes of plastic produced between 1950 and 2017, approximately 7 billion tonnes became plastic waste.Footnote 28 A significant part of this waste ended up in the ocean: of the 400 million tonnes of plastic produced annually, an estimated 19–23 million tonnes enters aquatic ecosystems.Footnote 29 In 2018, the Great Pacific Garbage Patch—the world's largest ocean plastic accumulation zone formed in subtropical waters between California and Hawaii—covered an estimated surface area of 1.6 million square kilometres,Footnote 30 an area twice the size of Texas or three times the size of France.Footnote 31 There are other major, albeit smaller, garbage patches in the ocean,Footnote 32 but the estimates of plastic concentrations in the ocean may be too optimistic.Footnote 33 It is thus clear that unless some drastic measures are introduced, the global scale of plastic pollution will continue to grow exponentially in the coming years and decades.Footnote 34
Amplified by its global scale, plastic pollution poses numerous threats to both humans and the environment. The impacts on marine organisms that are known to interact with plastic at every level of the food chain are particularly well documented.Footnote 35 For example, marine birds, turtles, mammals and fish are all highly vulnerable to plastic pollution as they are widely observed to ingest floating plastic or become tangled in it.Footnote 36 As a result, these animals can sustain life-threatening physical damage to their limbs and gastrointestinal tract.Footnote 37
For their part, tiny pieces of plastic—microplasticsFootnote 38—also pose significant threats to both humans and the environment. Microplastics can be deliberately produced or result from fragmentation and degradation of larger pieces of plastic. In general, plastic products are extremely resistant to degradation: depending on the properties of plastics and the surrounding environmental conditions, their longevity is estimated to be hundreds or even thousands of years.Footnote 39 However, despite being durable, plastic does degrade and can eventually break down into microplastics.Footnote 40 These tiny pieces of plastic are known to accumulate in the tissues of organisms that are exposed to them, harming these organisms and creating a pathway for plastic transfer within the entire food chain,Footnote 41 ultimately affecting humans.Footnote 42 Microplastics can also act as a vector and expose organisms to various contaminants, such as heavy metals, polycyclic aromatic hydrocarbons or antibiotics, that get ‘attached’ to plastic particles.Footnote 43
Additionally, plastic pollution can expose organisms to hazardous materials and substances that plastic products are made from. Given that the total number of materials and additives used for making plastic products exceeds 10,000—a quarter of which are potentially hazardousFootnote 44—the chemical impacts of plastic pollution are many. These include threats posed by bisphenol A (BPA), a chemical substance that commonly serves as a building block for polycarbonate plastics used in many everyday products such as plastic bottles, food packaging materials, construction materials, epoxy resins and toys.Footnote 45 Molecules of BPA leach from these products into the environment under normal conditions of use.Footnote 46 While the primary route for human exposure to BPA is via food, both humans and other living organisms are also exposed to BPA that leaches from BPA-based plastic products into the ambient environment, including into water, air and soil.Footnote 47 Human exposure to BPA has long been a matter of concern among health professionals and researchers, with an exponential increase in publications examining adverse effects on reproductive functions, child development, metabolism and other health effects.Footnote 48 BPA is currently recognised as an endocrine disruptor that can damage various tissues and organs, including the reproductive system, immune system and neuroendocrine system.Footnote 49
While BPA is among the most studied, it is by no means the only harmful substance widely used in the production of plastic products. For example, substances that were once considered safer alternatives to BPA have raised similar, if not identical, concerns.Footnote 50 Similarly, phthalates, plasticiser additives that are used in everyday household items such as toys, paints, medical devices and personal care products, have been identified ‘as some of the most hazardous chemical additives in plastics for health’.Footnote 51 Ubiquitous and highly susceptible to leaching,Footnote 52 phthalates are endocrine-disrupting chemicals that can harm reproductive health, and may also cause or contribute to other health disorders, including asthma, allergies and various cancers.Footnote 53 Numerous other substances that plastics are made from are also harmful to human health and the environment.Footnote 54 Furthermore, the persistence of these harmful substances in recycled plastic products undermines the efficacy of recycling as a way to deal with plastic pollution.Footnote 55
III. REGULATORY RESPONSE TO PLASTIC POLLUTION
The scale of the threat posed by plastic pollution makes it a planetary crisis that needs to be addressed urgently by adequate regulatory measures. Yet, as scholars have already observed, the regulatory response is highly fragmented and scattered across different jurisdictions, sectors and product lines.Footnote 56 What makes this fragmentation even more significant is the lack of policy coordination across States, the lack of dialogue between States and international institutions, the lack of uniformity among national and local policies, inconsistent standards, numerous loopholes, erratic implementation and systemic illegalities.Footnote 57 In the light of this fragmentation, no jurisdiction at either local, national or supranational level could comprehensively address plastic pollution. The absence of an international treaty addressing plastic pollution is the most salient gap,Footnote 58 and there have been various proposals for the establishment of such a treaty.Footnote 59 The UNEA 2022 resolution that paves way for the development of the first legally binding international instrument on plastic pollution by the end of 2024 thus seems an extremely timely (or rather, long overdue) development. However, the exact nature of the obligations under this prospective treaty remains uncertain, given the ambiguous reference to ‘both binding and voluntary approaches’ in that resolution.Footnote 60
In the jumble of existing measures, several regulatory approaches have emerged that address various aspects of plastic pollution. This section will focus on three approaches that address the three critical stages of the plastics life cycle, namely, production, use and disposal: (a) regulation of movement and/or disposal of plastic waste (waste regulation approach); (b) regulation of certain plastic products (product regulation approach); (c) regulation of chemical substances that plastic products are made from (substance regulation approach). It will provide an overview of some of the key measures that are currently offered by each of these regulatory approaches, which are the cause of action in almost all cases concerning plastic pollution, as will be seen in Section IV.
A. Waste Regulation Approach
Waste movement and disposal has been the main focus of the transnational regulation of plastics.Footnote 61 The key treaty that introduces restrictions on the movement of plastic waste is the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.Footnote 62 The 2019 amendments to its Annexes II, VIII and IX—also known as the Plastic Waste AmendmentsFootnote 63—made the Convention the first and, thus far, the only legally binding global instrument that specifically addresses plastic waste.Footnote 64 Following the adoption of the Plastic Waste Amendments, the Convention classifies all plastic waste, including from households, as waste requiring special consideration (Annex II), with the exception of certain plastic waste that is classified as non-hazardous (Annex IX), while certain other plastic waste, for example, plastic waste that contains heavy metals, is classified as hazardous (Annex VIII). The inclusion of plastic waste means that the transboundary movement of such waste is now subject to specific requirements, restrictions and prohibitions set by the Convention, for example, consent of the importing States.
In addition to the Basel Convention, regional treaties—namely, the Bamako ConventionFootnote 65 and the Waigani ConventionFootnote 66—prohibit the import of hazardous waste, including waste from production, formulation and use of plasticisers, into Africa and the Pacific Island Forum countries, respectively.
Restrictions on the transboundary movement of plastic waste address the notorious practice of exporting such waste into developing countries that struggle to deal with their own waste, where, due to the lack of the necessary facilities to dispose of it safely, such waste is often openly burned, resulting in dangerous air pollution.Footnote 67 In response to this problem, some countries in Asia—a continent that has seen the highest level of production and consumption of plastic products as well as the greatest imports of plastic waste—have recently banned the import of such waste.Footnote 68
Meanwhile, other international treaties prohibit the dumping of plastic in the marine environment. For example, the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter prohibits the disposal of plastics at sea,Footnote 69 while the International Convention for the Prevention of Pollution from Ships prohibits the discharge of all garbage from ships, including any form of plastic.Footnote 70 The UN Convention on the Law of the Sea, though not explicitly referring to plastic pollution, also requires States ‘to prevent, reduce and control pollution of the marine environment from any source’.Footnote 71 Plastic waste dumping is also prohibited by numerous national and local laws on waste management and pollution prevention.Footnote 72
Although important, an approach based on the regulation of waste alone does not offer a solution to the plastic pollution crisis. For instance, marine plastic litter comes mainly from land-based sources,Footnote 73 and thus prohibiting the dumping of plastic waste directly into the sea addresses only one element of the problem. Restrictions on the transboundary movement of plastic waste are not universal,Footnote 74 which means that such waste can still be exported to countries that do not have the capacity to process it safely. In other words, the waste regulation approach does not address the root cause of the plastic pollution crisis, namely, the gargantuan global rate of plastic production, which has now surpassed that of carbon emissions.Footnote 75
B. Product Regulation Approach
The limitations of the waste regulation approach are addressed to an extent by the more specialised regulatory approach that aims at limiting the production, distribution or use of plastic by imposing restrictions on, or specific requirements for, certain plastic products. The product regulation approach to tackling plastic pollution has a long history. In the 1990s and early 2000s, some countries began levying or imposing other restrictions on certain plastic products (particularly, single-use plastic bags), or even banning such products, in order to discourage their use and thus reduce their impact on the environment.Footnote 76 By the early 2020s, restrictions of this type, including bans on single-use plastic carrier bags, had been adopted by most countries.Footnote 77
In recent years, there has been a trend towards a more comprehensive system of restrictions and requirements, which represents the next stage in the evolution of the product regulation approach from rudimentary bans on specific plastic products. A prominent example of such a system is the European Union (EU) legal regime on plastic products. In addition to the restriction on plastic bags introduced by the 2015 Plastic Bag Directive,Footnote 78 the 2019 Single-Use Plastics Directive banned the placing on the market of nine common single-use plastic products, including cutlery, plates and straws as well as food and drink containers made of expanded polystyrene.Footnote 79 Furthermore, the Single-Use Plastics Directive requires EU Member States to reduce national consumption of certain single-use plastics by setting consumption reduction targets, marketing restrictions and economic measures, and establishing a system of extended producer responsibility. Similar measures have been adopted, or are in the process of being adopted, by some countries outside the EU, including Canada,Footnote 80 Costa Rica,Footnote 81 India,Footnote 82 JapanFootnote 83 and others.Footnote 84 Costa Rica is a particularly notable example, as the measures adopted are part of the national strategy to eliminate completely the use of single-use plastics that are already prohibited from entering national parks and other protected areas in the country.Footnote 85 In a parallel process, various countries, including Canada, France, New Zealand, South Korea, Sweden, the United Kingdom and the United States (US), have banned the production or sale of cosmetics and personal care products containing plastic microbeads.Footnote 86
While the product regulation approach is undoubtedly critical, its piecemeal nature results in numerous loopholes and exemptions that undermine the capacity of this approach in tackling plastic pollution. Whilst the EU Single-Use Plastics Directive prohibits the placing on the market of certain plastic products, it does not actually ban their production or export.Footnote 87 Furthermore, it does not prohibit the placing on the market of many commonly used single-use plastics, such as bottles made from polyethylene terephthalate (PET), facemasks and gloves, or non-single-use plastics of any type.
Meanwhile, recycling has already proven largely ineffective, with less than 10 per cent of all plastic ever produced having been recycled.Footnote 88 Unsurprisingly, common products like single-use plastic bottles continue to be among the most frequent types of marine plastic litter due to ineffective collection systems and low consumer participation in such systems.Footnote 89 In other words, even a more comprehensive system such as the EU Single-Use plastics regime still has considerable gaps. These and similar weaknesses of the product regulation approach are often highlighted when the respective legal acts are challenged in courts, as will be discussed in Section IV.
A significant failing of most restrictions on certain plastic products is that they do not address a related critical issue, namely, the hazardous properties of many substances that plastic products are commonly made from. Regulation of the latter has, however, been addressed by other legal regimes that focus on food safety and chemical substances control.
C. Substance Regulation Approach
The substance regulation approach focuses on the chemical substances that plastic products are commonly made from. There is a long history of such measures at the national and international levels. For example, in 1979, the US Toxic Substances Control Act banned production and commercial distribution of polychlorinated biphenyls (PCBs)—a group of chemicals known to cause a wide range of adverse health effects, including cancer—that were widely manufactured as plasticisers in plastic products since 1929.Footnote 90 PCBs were subsequently banned by national law in most countries by the 1980s,Footnote 91 as well as by international law under the 2001 Stockholm Convention on Persistent Organic Pollutants.Footnote 92
The specific nature of the substance regulation approach dictates both its advantages and limitations regarding plastic pollution. The main advantage is that it can prevent the use of hazardous substances across a wide range of plastic products, for example, as with PCBs and some other persistent organic pollutants used as plasticisers, flame retardants, or water repellents, that were banned by national law or by the Stockholm Convention.Footnote 93 However, like waste regulation, substance regulation does not prevent the production of plastic products—only certain substances (materials) used in such products. Consequently, as long as the restricted substances are substituted with others that are permitted, such an approach does not prevent production of any plastic products in any quantity. Unfortunately, there are thousands of substances that are used in the production of plastic products, and many such substances have been reported as having adverse health effects.Footnote 94
The problem is further exacerbated by the fact that it can take many years for regulatory bodies to restrict certain substances, and the approach to such restrictions can be highly fragmented, as demonstrated by the example of BPA. In the US, the Food and Drug Administration (FDA) has been releasing reports on BPA since the late 2000s.Footnote 95 In 2012, the FDA and other federal agencies launched a collaborative project called CLARITY-BPA that involved scientists from several US universities, in order to provide a definitive evaluation of BPA.Footnote 96 After the project was concluded, scientists criticised the FDA over the agency's conclusion that the use of BPA and exposure to it as currently permitted is safe, despite ‘overwhelming evidence of harm’.Footnote 97 Among other things, scientists pointed out that the FDA's approach to risk assessment of hormonally active substances was outdated and rejected by endocrinology.Footnote 98 Admittedly, the FDA prohibited the use of BPA-based materials in baby bottles, sippy cups and infant formula packaging in 2012–13, but these prohibitions stemmed from the US chemical industry trade association's statement that chemical companies were no longer using BPA in such products, and not from concern over BPA safety.Footnote 99
In the meantime, some other countries have adopted national regulatory measures on BPA expressly because of its harmful health impacts. For example, in 2008 Canada became the first country in the world to raise regulatory concern over the use of BPA in baby bottlesFootnote 100 and this subsequently led to the inclusion of polycarbonate baby bottles containing BPA in the list of banned consumer products under the Canada Consumer Product Safety Act.Footnote 101 Similar, or even more restrictive, measures on BPA have since been introduced elsewhere, for example in the EU and its Member States,Footnote 102 Argentina,Footnote 103 ChinaFootnote 104 and South Africa.Footnote 105
The fragmentation of the regulatory response to BPA can also occur within a single jurisdiction. For example, in 2015, the European Food Safety Authority (EFSA) published a comprehensive evaluation of BPA exposure and toxicity and concluded that ‘there is no health concern for any age group from dietary exposure and low health concern from aggregated exposure’ to BPA.Footnote 106 Nevertheless, EFSA temporarily reduced the tolerable daily intake of BPA, while committing to re-evaluate BPA toxicity following the findings of CLARITY-BPA.Footnote 107 In April 2023, after several years of consultations and assessment, EFSA published a re-evaluation of BPA toxicity, setting the tolerable daily intake of BPA in foods 20,000 times lower than in its 2015 report.Footnote 108 In contrast, as early as 2017, the European Chemicals Agency (ECHA) decided to include BPA as a substance of very high concern in the candidate list of substances identified with a view to their eventual inclusion in Annex XIV (substances subject to authorisation) to the Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH Regulation),Footnote 109 on the grounds that BPA had been identified as a substance toxic for reproduction within the meaning of Article 57(c) of the REACH Regulation.Footnote 110 Several months later, the ECHA updated the entry on BPA to reflect its endocrine-disrupting properties, in accordance with Article 57(f) of the REACH Regulation.Footnote 111 Unsurprisingly, the difference between the EFSA and the ECHA approaches was pointed out, albeit unsuccessfully, by the plastics industry, when it challenged the ECHA decision in the Court of Justice of the European Union (CJEU), as will be discussed in Section IV.
Whilst the substance regulation approach can effectively reduce some chemical threats posed by plastic pollution, it cannot adequately address all of the threats it presents. Even if the slow, case-by-case assessment of certain hazardous substances ultimately results in their restriction, such substances can still be produced and exported, as demonstrated by litigation in France discussed in Section IV, or simply be substituted by other hazardous substances. Consequently, pollution caused by such products persists.
IV. LITIGATING PLASTIC POLLUTION
The growing concern over plastic pollution and the first regulatory measures directed against it have resulted in litigation. By early 2023, cases had emerged in more than 30 countries, including national and/or local courts in Argentina, Australia, Bangladesh, Belgium, Brazil, Canada, Chile, China, Colombia, France, Germany, Guatemala, India, Indonesia, Ireland, Israel, Italy, Japan, Kenya, Malawi, Malaysia, Mexico, Nepal, the Netherlands, New Zealand, Pakistan, Paraguay, the Philippines, Portugal, South Africa, Spain, Sweden, Thailand, Uganda and the US, as well as in the CJEU.
Given the large number and the wide geographical distribution of such cases, it is helpful to classify the respective claims to determine the role of courts in relation to plastic pollution governance. There are two types of plastic pollution claims: (1) claims against regulatory bodies; and (2) claims against companies. The two most prominent categories of claims against regulatory bodies are: (a) claims that seek the adoption or implementation of regulatory measures (pro-regulatory claims); and (b) claims that seek to quash the existing regulatory measures (anti-regulatory claims). For their part, claims against companies typically focus on pollution caused by the life cycle of plastic products, or on the false and misleading advertising of such products.
As this section demonstrates, the regulatory approaches discussed in Section III (or the alleged lack of regulatory measures that would fall under such approaches) have played a key role in the emergence of different types of claims. For instance, claims against regulatory bodies have largely stemmed from the restrictions adopted on or specific requirements for plastic products (in the case of anti-regulatory claims), or from the lack of such restrictions and requirements (in the case of pro-regulatory claims), whereas claims against companies have been predominantly driven by regulatory measures on plastic waste. Meanwhile, claims concerning chemical substances from which plastic products are made (most notably, BPA) are typically directed against regulatory bodies and are anti-regulatory. However, the overall volume of such claims is very low compared to claims that stem from product regulation. This focus of pro-regulatory claims on plastic products rather than on chemical substances probably reflects a long-standing tradition of considering plastic pollution through the lens of recycling and waste and not through the lens of its chemical impacts. For its part, the greater ability to substitute a restricted chemical substance than to substitute an entire product line may explain the focus of the industry's anti-regulatory claims on challenging product regulation rather than regulatory measures concerning chemical substances.
This section will now analyse the different types of plastic pollution claims in detail.
A. Claims against Regulatory Bodies
Even though there are different categories of claims against regulatory bodies, the large majority of them focus on the regulation of plastic products.
1. Pro-regulatory claims
There are two categories of pro-regulatory claims: those that seek adoption of regulatory measures on plastic pollution and those that seek implementation of existing measures.
a) Adoption of regulatory measures
The first pro-regulatory claims where individuals and non-governmental organisations (NGOs) concerned about the growing threat of plastic pollution sought the adoption of regulatory measures date back to the early and mid-2000s. One of the first such cases was initiated in 2002 in Uganda, where the environmental NGO Greenwatch requested the High Court of Uganda to declare the production, distribution, use and disposal of commonly used plastic bags, plastic food wrappers, and other plastic products, a violation of the constitutional right to a healthy environment.Footnote 112 Тhe claimant asked the court to order the government to ban such products and to initiate environmental restoration. By the time the court issued its order in 2012, the government had already introduced some restriction on the importation and use of plastic bags, so the court merely urged it to adopt further measures ‘as a matter of urgency because the damage is likely to be extremely costly’.Footnote 113 More importantly, the court granted the declaratory relief that had been sought, thus becoming one of the first courts in the world to recognise explicitly that plastic pollution violates human rights, namely, the right to a healthy environment.
A more tangible outcome was achieved in the early pro-regulatory plastic pollution litigation in India. For example, in Kumar Jain the Delhi High Court was asked to direct the government to amend waste legislation in order to restrict the manufacture and sale of all plastic bags.Footnote 114 The court convened a committee that was tasked with studying environmental and health hazards resulting from the use of plastic bags in the country's capital.Footnote 115 After considering numerous threats posed by plastic pollution, including air pollution resulting from inadequate recycling practices, the court concluded that ‘a blanket ban on the use of plastic bags may be premature’.Footnote 116 Nevertheless, the court directed the Delhi Government to ban such bags in markets and shopping centres, and to close unauthorised plastic waste recycling facilities.Footnote 117
The widespread adoption of regulatory measures concerning plastic pollution over the past decade has not put an end to this category of pro-regulatory claims. For example, in response to a claim brought by the environmental NGO Adam Teva V'Din (ATD) in 2019, the High Court of Justice of Israel ordered the government to explain the exemption of large plastic bottles from the bottle deposit law,Footnote 118 which subsequently led the Minister of Environmental Protection to include these plastic products in that law in 2020.Footnote 119 Nevertheless, the growing number of regulatory measures has inevitably led to a greater focus on implementation. In the years following the early litigation in India, both the Supreme Court and the National Green Tribunal were asked to order the national government to introduce further restrictions on plastic products: both declined to do so by giving priority to monitoring implementation of existing national legislation, rather than the adoption of new measures.Footnote 120
b) Implementation of regulatory measures
The widespread emergence of pro-regulatory claims concerning the implementation of regulatory measures on plastic pollution is a relatively recent phenomenon. In 2020–21, the Supreme Courts of Bangladesh,Footnote 121 NepalFootnote 122 and ParaguayFootnote 123 ordered their respective governments to implement national legislation that restricted or banned plastic bags. A similar order was issued by the Lahore High Court against the government of the Province of Punjab in Pakistan in 2020.Footnote 124 In 2021, the Supreme Court of the Philippines issued a writ of Kalikasan and a writ of Continuing Mandamus in Oceana Philippines International, where claimants challenged the lack of implementation of national legislation on solid waste management regarding plastic pollution.Footnote 125
A particularly striking fact about some of the cases mentioned above is that the unimplemented regulatory measures dated back to the early 2000s.Footnote 126 More recent measures, however, can also be undermined by prolonged lack of implementation, as demonstrated by Larroza Lopez.Footnote 127 In this case two individuals alleged violations of environment and health-related constitutional rights resulting from the Paraguayan government's failure to implement the 2015 law that imposed restrictions on the use of plastic bags. The Supreme Court of Justice found no evidence of any implementation measures five years after the law was passed, although by that time single-use plastic bags should have no longer been in commercial use.Footnote 128 The Court dismissed the ministry's argument that it was ‘legally and factually impossible’ to implement the 2015 law, by stating that such a justification could not be made with regard to the implementation of legislation.Footnote 129 At the same time, the Court acknowledged that plastic pollution goes hand in hand with another global crisis, namely, climate change, as well as causing local environmental problems and creating favourable conditions for the spread of vector-borne diseases such as dengue.Footnote 130 The Court therefore ordered the ministry to implement the 2015 law immediately.Footnote 131
2. Anti-regulatory claims
Anti-regulatory claims began to emerge shortly after regulatory bodies at the national and/or local level started imposing restrictions on certain plastic products.Footnote 132 Anti-regulatory claims are very common, and typically concern challenges relating to the economic interests of plastics manufacturers and other businesses, regulatory bodies’ legislative power and conflict of laws, and the assessment of environmental and health impacts.
a) Economic interests
The economic interest argument is one of the oldest and most common challenges against regulatory measures on plastic pollution. In such cases, the claimants—typically, the plastics manufacturers—argue that the regulatory measures imposed harm their economic interests. An early example of such a case is Nepal Plastic Production Federation, in which the Supreme Court of Nepal dismissed the plastics manufacturers’ challenge to the 2000 municipal ban on plastic bags by referring to the harmful impacts of plastics on the environment and human health and declaring that the economic rights of producers were not absolute.Footnote 133 Similarly, when the Delhi Government banned the sale and use of plastic bags across various shopping and hospitality venues in response to the court order in Kumar Jain, this was immediately challenged by the plastics industry which claimed that the adopted measure put it under great economic pressure.Footnote 134 The Delhi High Court, however, was unpersuaded, pointing out, first, that the contested measure did not completely ban the production of plastic bags,Footnote 135 and secondly, because it was introduced in response to growing environmental and health concerns, and so some impact on the manufacturers’ commercial interests was inevitable.Footnote 136
The economic interest argument has been widely and unsuccessfully referred to in more recent cases as well, including by the association of Argentinian plastic manufacturers who challenged a ban on the distribution of non-biodegradable lightweight carrier bags at the point of sale in the city of Buenos Aires, claiming that such a ban violated the constitutional right to carry out business.Footnote 137 The Administrative and Tax Court of Buenos Aires pointed out that the contested measure did not ban the production or the sale of such bags per se; thus, even if it affected the manufacturers’ economic interests, this alone was insufficient to render it unconstitutional.Footnote 138 Similarly, the Supreme Federal Court of Brazil declared that economic interests cannot be pursued at the expense of environmental protection in Union of the Plastic Material Industry of the State of São Paulo, where the plastics industry unsuccessfully challenged a municipal law that prohibited businesses from distributing plastic bags to customers.Footnote 139
It is important to observe that, on many occasions, courts have rejected the economic interest argument by weighing the right to carry out business against environmental rights and duties. Once again, India provides many such examples, including Chennai Non Woven's Private Limited, where the Madras High Court dismissed the economic interest argument of the plastics industry that challenged a ban on the production, use and distribution of most single-use plastic products that had been introduced by the state of Tamil Nadu in 2018.Footnote 140 The court stated that the right to life under Article 21 of the Indian Constitution ‘includes right of enjoyment of pollution free water and air’, and by imposing the above-mentioned ban, the state was ensuring this right.Footnote 141 Therefore, the resulting restrictions on the right to carry out business were inevitable.Footnote 142 Various other Indian courts have dismissed similar challenges on identical grounds.Footnote 143
The conflict between the right to carry out business and environmental rights has been addressed by courts in other countries as well. For example, in Kenya Association of Manufacturers, the Environment and Land Court dismissed the industry's challenge to the 2017 national ban on the use, manufacture and importation of plastic bags used for commercial and household packaging.Footnote 144 The court was ‘not persuaded that the benefits to be derived from plastic outweigh its negative effects on the environment’,Footnote 145 and observed that while businesses ‘may suffer social and economic losses as a result of the ban, the plastic ban is for the common good of the general public and as such lawful’.Footnote 146 The ‘common good’ at stake was the constitutional right to a healthy environment under Article 42 that was coupled with the constitutional duty of the government to protect the environment and natural resources under Article 69.Footnote 147 An identical line of reasoning was adopted by the Constitutional Court of Guatemala with regard to the industry's multi-pronged challenge to the ban on certain single-use plastic products that was introduced by the municipality of San Pedro La Laguna in 2016.Footnote 148
One notable exception to the trend of courts rejecting the economic interest argument is the French case concerning BPA, where this argument was partially successful. When France banned the production, import, export and sale of BPA-based baby bottles in 2010, the plastics industry challenged it, claiming that the ban created market distortions and put the French companies in a disadvantageous position.Footnote 149 The French Constitutional Council observed that the adopted measure was intended to protect persons who are particularly vulnerable to the threats posed by exposure to endocrine-disrupting BPA, thus protecting the constitutionally recognised right to health.Footnote 150 However, the Council held that since BPA is allowed in many other countries, prohibiting its production in or export from France would not contribute to the protection of health in France, and thus such prohibitions were indeed unconstitutional.Footnote 151
b) The legislative power of regulatory bodies and conflict of laws
Another long-established and common challenge to regulatory measures against plastic pollution is the alleged lack of regulatory bodies’ legislative power and/or conflict of laws.Footnote 152 For example, in the case of Aero Plastic Industries Ltd, the plastics manufacturers challenged the Malawian government's ban on production, distribution and use of thin plastic bags and wrapping films, arguing that such a ban was inconsistent with legislation in most other Southern Africa Development Community (SADC) countries and so arguably violated the SADC treaty.Footnote 153 The Supreme Court of Malawi disagreed, by pointing out the government's constitutional obligation to protect the right to a healthy environmentFootnote 154 and international obligations to tackle plastic pollution, particularly, the Basel Convention and its Plastic Waste Amendments.Footnote 155 Furthermore, the Supreme Court reasoned, the SADC treaty does not address plastic pollution, and the fact that some SADC countries might have less stringent rules on plastic products did not reflect the specific situation in Malawi with regard to plastic pollution.Footnote 156
An alleged conflict of laws was also at issue in the US case of Poly-Pak Industries Inc., where a group of plastics manufacturers, supermarkets and local retailers challenged a ban on the distribution of plastic carryout bags introduced by the state of New York in 2019 (the Bag Reduction Act) and the subsequent 2020 regulations adopted with respect to it.Footnote 157 Amongst other things, the claimants alleged that the Bag Reduction Act conflicted with the state's 2008 Bag Recycling Act, which required businesses to establish recycling programmes for plastic carryout bags.Footnote 158 The state of New York Supreme Court dismissed the claim because ‘where the provisions in the earlier statute cover the same field as the later statute and there is no room for reconciliation, such inconsistent earlier provisions are repealed’—in other words, ‘the Bag Recycling Act's provisions would be subject to and preempted by the Bag Reduction Act’.Footnote 159 The court did find that part of the 2020 regulations conflicted with the Bag Reduction Act, as the former allowed additional exemptions for certain plastic bags that the latter banned: the court therefore declared these portions of the regulations invalid.Footnote 160
Typically, claims within this category allege that the municipal or regional regulatory bodies lack the authority to introduce measures directed against plastic pollution and that such measures conflict with measures adopted at the national level.Footnote 161 A notable example of this is Union of the Plastic Material Industry of the State of São Paulo, where the plastics industry argued that a ban on plastic bags could only be introduced by state or federal authorities and not by a municipality.Footnote 162 The Supreme Federal Court of Brazil, however, disagreed and stated that the federal and state constitutions allow municipalities to legislate in matters concerning local interest, including solid waste management, while also imposing a constitutional duty to protect the environment.Footnote 163 The Court also dismissed nearly identical challenges to similar bans introduced by the municipalities of Americana and Marilia.Footnote 164
The same line of reasoning was adopted by many Indian courts in cases where the plastics industry challenged state-level restrictions on certain plastic products that allegedly conflicted with national legislation (the Plastic Waste Management Rules) by imposing more stringent requirements or prohibitions than the latter. The courts dismissed such challenges by holding that the Plastic Waste Management Rules only set general requirements and therefore states could introduce further measures that they deemed necessary for the protection of the environment and human health.Footnote 165 For the same reason, the Supreme Court of Indonesia dismissed a challenge to the ban on certain single-use plastic products introduced by the province of Bali, indicating that the national legislation on waste did not preclude the local government from creating regional policies to address plastic pollution.Footnote 166
Similarly, the Constitutional Court of Spain dismissed a challenge to the Chartered Community of Navarre's 2018 ban on distribution of plastic bags to consumers, only in this case it was not the plastics industry that challenged the local ban but the national government.Footnote 167 The ban introduced more stringent measures on plastic bags than did the national legislation, namely, the 2018 Royal Decree.Footnote 168 The national government maintained that the autonomous community could only introduce legislation concerning environmental protection in the absence of relevant national laws.Footnote 169 It also alleged that apart from its environmental protection function, the 2018 Royal Decree arguably introduced harmonious measures across the country in order to avoid market distortions.Footnote 170 The Constitutional Court disagreed, pointing out that autonomous regions could adopt further protection measures in addition to the minimum requirements set by national lawsFootnote 171 and that the contested ban itself had no direct and significant effect on the market.Footnote 172 The Court therefore dismissed the claim.Footnote 173
While courts have generally dismissed claims that challenged regulatory bodies’ legislative power or raised concern about the alleged conflict of laws, there have been some notable examples of the challenged measures being quashed. One of these is Canadian Plastic Bag Association, where the manufacturers challenged the city of Victoria's 2018 bylaw that prohibited businesses from selling or providing single-use plastic bags to customers free of charge.Footnote 174 The manufacturers claimed that since the purpose of this bylaw was environmental protection, it should have been approved by the provincial minister of environment, for otherwise the city lacked jurisdiction to impose such a ban.Footnote 175 The Court of Appeal for British Columbia agreed, noting that because ‘the Province takes an active part in regulating and managing not only the disposal of waste but environmental protection generally, [it] might wish to have the right to approve, or withhold approval of, municipal bylaws relating to environmental protection in order to ensure that a patchwork of different municipal laws does not hamper provincial environmental programs’.Footnote 176 Since the appeals court agreed that the ultimate goal of the bylaw was to prevent plastic pollution,Footnote 177 it declared that the city was indeed required to obtain the approval of the provincial Minister of Environment, and quashed the bylaw as ultra vires.Footnote 178
Another example is the Quindío department's challenge to the 2020 ban on the use of certain plastic packaging adopted by the municipality of Salento in Colombia.Footnote 179 The claimant argued that while the municipality's intention of tackling plastic pollution was laudable, territorial entities could not unilaterally ban the use of plastic products because such power was vested only in the national authorities.Footnote 180 The Quindío Administrative Court agreed, stating that such measures needed to be adopted in the regional and national context, and declared the ban void.Footnote 181 Similarly, when the industry challenged the state of Oaxaca's ban on the sale, distribution or use of certain plastic products made of PET or expanded polystyrene, the Supreme Court of Justice of Mexico held that such a ban was indeed unconstitutional because such power is vested within federal, not state, authorities.Footnote 182
Furthermore, courts can also declare municipal restrictions on certain plastic products to be pre-empted by state law, as happened in the US case of City of Laredo.Footnote 183 In 2014, the city adopted an ordinance that prohibited businesses from providing or selling certain plastic bags to customers, with a view of protecting the city from the various threats posed by plastic pollution, including threats to life and property that result from flooding caused by blocked sewer systems.Footnote 184 The industry alleged that the ordinance was pre-empted by state law, namely, the Texas Solid Waste Disposal Act, which protects both the environment and public health, welfare and property by controlling the management of solid waste, including plastics.Footnote 185 The Supreme Court of Texas held that despite the city's ‘full power of local self-government’, the state legislature can limit that power by adopting state-wide regulation, in this case, the solid waste management under the above-mentioned Act,Footnote 186 and held that the latter Act pre-empted the city's ordinance.Footnote 187
c) Environmental and health impacts
While the two categories of anti-regulatory claims discussed earlier in this section are by far the most common, regulatory measures concerning plastic pollution are also frequently challenged on other grounds. The most frequent claim of these is that the regulatory bodies have failed to assess the environmental or health impacts resulting from the restrictions on certain plastic products.
One of the earliest examples of such claims is the US case of Save the Plastic Bag Coalition, where an association of plastic bag manufacturers and distributors challenged the city of Manhattan Beach's decision to ban the distribution of plastic bags at point of sale without carrying out an environmental impact assessment.Footnote 188 The claimants argued that such a decision would result in even greater environmental harm because plastic bags would be replaced by paper bags, the life cycle of which is arguably more harmful to the environment than that of plastic bags.Footnote 189 For its part, the city argued that the decision ‘would have only a miniscule contributive effect on the broader environmental impacts’, thus rendering a detailed analysis of these impacts under state environmental quality legislation unnecessary.Footnote 190 Considering the small size of the city's population and retail sector, the Supreme Court of California ruled in favour of the city and emphasised that generic assessment of life cycle impacts associated with a particular product ‘must be kept in proper perspective and not allowed to swamp the evaluation of actual impacts attributable to the project at hand’.Footnote 191 The association's subsequent challenges to similar measures introduced by some other cities and counties in California were also unsuccessful.Footnote 192 A similar challenge to national restrictions on certain single-use plastic products is currently pending before the Federal Court of Canada.Footnote 193
Concern over the alleged health threats created by restrictions on plastic products, unsuccessfully argued in various cases,Footnote 194 has gained more prominence following the outbreak of the COVID-19 pandemic. For example, in Poly-Pak Industries Inc., the claimants contended that the state of New York failed to consider the COVID-19-related health implications of its 2019 ban on plastic bags.Footnote 195 The court, however, dismissed this claim, stating that the claimants were not entitled to such a determination.Footnote 196 In contrast, in Brazil, the Court of Justice of São Paulo suspended the 2020 municipal ban on the distribution of single-use plastic cups, cutlery and some other products, in response to the plastics industry's claim that the regulatory bodies had failed to consider the effects of such a ban in the light of the COVID-19 pandemic.Footnote 197
The assessment of health impacts was also the chief argument in the EU case of PlasticsEurope, where plastics manufacturers challenged the ECHA 2017 decision to include BPA as a substance of very high concern under the REACH Regulation.Footnote 198 The plastics manufacturers raised numerous objections to this decision, arguing, among other things, that the ECHA failed to establish the existence of ‘probable’ serious effects of BPA, and failed to consider the relevance of the EFSA 2015 assessment on BPA and studies conducted by non-EU bodies. The General Court of the EU dismissed the claims, finding that the scientific assessment carried out by the ECHA was adequate,Footnote 199 while the differing scope of the respective assessments conducted by the ECHA and EFSA meant that the alleged inconsistency between these assessments was irrelevant when the ECHA reached its decision to classify BPA as a substance of very high concern.Footnote 200 The plastics manufacturers’ subsequent appeal to the European Court of Justice was also dismissed.Footnote 201
3. Other claims against regulatory bodies
In addition to pro-regulatory and anti-regulatory claims, courts have also addressed various other claims against regulatory bodies. One of the most common categories of such claims concerns the enforcement of restrictions imposed on certain plastic products, typically levies on plastic bags.Footnote 202 For example, in Dunnes Stores, a food, textiles and homewares retailer challenged a levy imposed by the Irish tax authority on ‘flimsy’ plastic bags that the company provided for the purposes of wrapping or hygiene.Footnote 203 The company claimed that such bags were not subject to the levy, which arguably applied only to plastic bags supplied to customers at the point of sale. The Supreme Court of Ireland disagreed, indicating that the levy was meant to tackle plastic pollution and thus applied to all bags other than those explicitly exempted.Footnote 204 A different outcome occurred in Premier Plastics, where the High Court of South Africa held that an environmental levy did not apply to thin plastic carrier bags that the claimant—a South African manufacturer of plastic products—exported to Eswatini and Lesotho.Footnote 205 The court emphasised that restrictions on the manufacture and distribution of such bags applied only in those cases when such bags were intended for use in South Africa, while export of such bags was exempted from restrictions and levies.Footnote 206
Sometimes, claimants challenge regulatory bodies over environmental impact assessment relating to plastic pollution resulting from specific projects. For example, in Te Rūnanga o Ngāti Awa, the claimants challenged consents to the expansion of the existing water bottling plant and to the construction of a new plant issued by local authorities to a private company.Footnote 207 Among other things, the claimants alleged that the authorities failed to consider the end-use effects of bottling water, namely plastic pollution both within New Zealand and abroad. The case was first addressed by the Environment Court of New Zealand which dismissed the claim by holding that the end uses of putting water in plastic bottles were beyond the scope of environmental impact assessment required by the Resource Management Act 1991 (RMA).Footnote 208 The claimants appealed to the High Court of New Zealand, but they were unsuccessful. First, the court indicated that unlike the ban on the supply of plastic shopping bags by retailers, the use of plastic bottles was lawful.Footnote 209 Secondly, the court considered the effects of discarding such bottles abroad ‘too remote and outside the scope of the RMA … as it is implausible to apply sustainable management principles to overseas jurisdictions’.Footnote 210 As for the domestic use of such plastic bottles, the court was convinced that the existing recycling measures and prohibition of littering in New Zealand ‘may reduce the relevant consequential effects’.Footnote 211 The court concluded that although the effect of plastic pollution will not always be ‘too remote to warrant consideration’, in this particular case it was indeed too remote.Footnote 212
Plastic pollution has also been at the heart of other cases concerning environmental impact assessment, most notably challenges to permits for construction or expansion of plastics plants. A prominent example of this is the US case of Center for Biological Diversity, where environmental NGOs challenged a permit to construct a large plastics manufacturing plant in Louisiana, arguing that the project would lead to substantial discharge of microplastics into the Mississippi River and affect communities that were already overburdened with air and water pollution.Footnote 213 Shortly after the case was filed, the US Army Corps of Engineers suspended the contested permit in order to reassess it.Footnote 214 A similar challenge has been raised by environmental NGOs with regard to the decision of the Flemish authorities to permit expansion of the plastics factory in Antwerp, Belgium.Footnote 215
B. Claims against Companies
The role of companies in plastic pollution is complex and multifaceted. For example, scientists who reviewed the outcomes of CLARITY-BPA raised a number of disturbing points, such as the studies funded by the plastics and chemical industries that concluded that BPA was safe, as well as these industries’ denial of the threats posed by BPA—tactics similar to those previously used by the tobacco and lead paint industries.Footnote 216 Similarly, the UN Special Rapporteur on hazardous substances and human rights has expressed concern over the industry's disinformation campaigns that have led to the widespread belief that recycling is a solution to plastic waste.Footnote 217 At the same time, as discussed earlier in this section, the plastics and the chemical industries as well as retailers have actively challenged regulatory measures relating to plastic products. However, claims against companies themselves are also becoming increasingly common, particularly over the inadequate handling of plastics throughout their life cycle, or the false and misleading advertising of such products.
1. Pollution caused by the life cycle of plastic products
As discussed in Section II, the entire life cycle of plastic products causes numerous threats to humans and the environment. Unsurprisingly, there is a wide range of civil and criminal cases concerning various stages of the life cycle of plastics, including leakage of plastic particles from manufacturing, packaging or waste treatment facilities into bodies of water,Footnote 218 storageFootnote 219 and dumping of plastic waste,Footnote 220 air, water or soil pollution with chemicals caused by inadequate recycling of plastic waste,Footnote 221 failure to meet recycling targets,Footnote 222 and failure to assess the various impacts of plastic on humans and the environment comprehensively.Footnote 223
Among the prominent examples of such litigation is the US case of San Antonio Bay Estuarine Waterkeeper. Following multiple complaints from local residents about floating plastic pellets near Formosa's plastics manufacturing plant in Texas, the state environmental authorities found there had been repeated violations of the company's permit that prohibited the discharge of floating solids into local bodies of water.Footnote 224 Although the company tried various source control measures, none could adequately prevent the leakage of plastic pellets into the waterways.Footnote 225 The District Court for the South District of Texas concluded that the company's violations of its permit spanned several years and were ‘enormous’ and that the company was ‘a serial offender’, including a repeated failure to report such violations to the authorities.Footnote 226 The court also held that there was ‘undisputed evidence’ of harms to local residents because of the diminished recreational and aesthetic value of the local environment.Footnote 227 Following the district court's ruling, the company agreed to pay $50 million to settle the claims, although this did not prevent the parties from disagreeing over what triggered Formosa's payment and reporting obligations.Footnote 228
Another US court has also allowed a claim against a plastics packaging company that was allegedly leaking plastic pellets into local waters in South Carolina.Footnote 229 The court found that there was adequate evidence of injuries provided by the harmful environmental effects of the spilled plastic pellets, including ‘lethal and sub-lethal effects in animals’.Footnote 230 The court was also convinced that the claimants could pursue simultaneous claims under resource conservation legislation and water pollution legislation, since each individual plastic pellet could qualify either as ‘solid waste’ under the former or as a ‘point source discharge’ under the latter.Footnote 231
2. False and misleading advertising
Another prominent category of claims against companies concerns false and misleading advertising of plastic products. One of the earliest such cases, Australian Competition and Consumer Commission, concerned misleading statements made by an Australian company on its website and in newspapers that the plastic shopping bags distributed by the company were biodegradable, compostable and complied with the existing legislation and standards on such products.Footnote 232 The Federal Court of Australia ordered the company to issue a public notice concerning its false advertising. A similar decision was reached by the Court of Gorizia in the Italian commercial competition case of Alcantara SPA, where a company sued its competitor over the latter's false and misleading advertising of its automotive polyester fibre, including statements that the fibre was ‘100% recyclable’ and ‘eco sustainable’.Footnote 233 The court held that such statements created an image of a ‘green’ company, which led to unfair competition given consumers’ high environmental awareness, and ordered the defendant to remove the contested messages.
In contrast, in Duchimaza, the US District Court for New York's Southern District held that a ‘100% recyclable’ statement on plastic water bottles was not false or misleading even if the caps and labels on such bottles are not recyclable, as these are merely ‘minor incidental components’ of the actual product.Footnote 234 Nor was the court convinced that the limited availability of recycling facilities in New York rendered the claim concerning ‘100% recyclability’ false or misleading.Footnote 235 A district court in Illinois reached an identical conclusion in the case of Curtis, holding that the lack of recycling facilities does not render ‘recyclable’ claims on certain plastic products false or misleading, because the word ‘recyclable’ simply refers to the fact that it is possible to recycle such products, but it does not constitute a promise or prediction that such products would actually be recycled.Footnote 236
Several claims within this category were brought by the US environmental NGO Earth Island Institute against various food, drink and consumer goods companies, seeking compensation over alleged harms caused by plastic pollution on the coasts and waterways of California resulting from defendants’ distribution of plastic products in California without sufficient warning of threats posed by such products.Footnote 237 The claimant alleged that the defendants put a recycling symbol on their products, which misled consumers about the ultimate fate of such products once they are discarded, namely, that most of these products would either be burned or dumped in waterways.Footnote 238 At the early stage of litigation, the claimant achieved procedural wins in two of its cases: by persuading the federal court in Crystal Geyser Water Company to remand the case to state court on the grounds that the alleged harms stemmed from local pollution, rather than global pollution, as purported by the defendants;Footnote 239 and by persuading the court in BlueTriton Brands to deny the defendant's motion to dismiss the complaint.Footnote 240 However, the claimant failed to persuade the court to deny the defendant's motion to dismiss the claim in Coca-Cola Company, as the court held that statements such as ‘Make 100% of our packaging recyclable globally by 2025’ are aspirational in nature, and thus do not violate consumer protection law.Footnote 241
V. LITIGATION AS A GLOBAL ANTI-POLLUTION STRATEGY
The analysis of the different types of claims in plastic pollution litigation and the courts’ treatment of such claims reveals several trends relating to plastic pollution governance.
First, there are numerous ways for courts to engage with legal questions concerning plastic pollution. Courts can order the regulatory bodies to adopt measures that address plastic pollution or to implement existing measures. Furthermore, they can uphold the validity of such measures when the latter are challenged by the industry. Courts can also order regulatory bodies to consider the environmental and health impacts of plastics properly when approving projects that could lead to increased pollution. Finally, courts can hold private entities liable for pollution caused by inadequate handling of plastics at various stages of their life cycle, or for misleading consumers about their plastic products. Of course, the ability of courts to deal effectively with these questions is largely contingent on the legal context in which they are operating, for example, the existence of a legislative or constitutional mandate in the respective legal system that allows courts to impose a duty on a regulatory body to adopt or implement measures regarding plastic pollution.
Secondly, although plastic pollution has been litigated in different legal systems with different litigation traditions and different levels of judicial power,Footnote 242 courts around the world have clearly signalled their willingness to engage with legal questions concerning plastic pollution. Such willingness has been primarily driven by the universal recognition of the threats posed by plastic pollution, most notably the significant local environmental and health harms. Accordingly, most courts have recognised the importance of tackling plastic pollution at the local level. This recognition is pivotal for strengthening the regulatory response to plastic pollution, as it allows local governments to introduce and enforce strict regulatory measures even in the absence of (adequate) national response. Plastic pollution has been observed to concentrate close to its sources, including urban areas and tourist regions;Footnote 243 thus, local preventive measures are crucial as they help protect local ecosystems and communities that may be disproportionately affected by plastic pollution.Footnote 244 Furthermore, as plastic pollution can be easily dispersed via different transport mechanisms such as wind, rivers and sewerage systems,Footnote 245 local measures preventing the emergence of such pollution are also vital to addressing the global crisis.
Similarly, the focus on local impacts has led many courts to recognise plastic pollution as a potential human rights concern, and in some cases even declare that such pollution violates human rights. This step is strategically important, as it paves the way for the development of substantive and procedural obligations, as well as obligations relating to the protection of those particularly vulnerable to environmental harms,Footnote 246 for example, consideration of impacts on human rights when approving projects that could lead to increased plastic pollution. This is highly relevant given that polluting projects can, or even tend, to emerge in places where systemic inequalities and human rights violations abound. By way of example, the proposed site for the construction of the contested plastics manufacturing plant in Center for Biological Diversity was none other than the infamous ‘Cancer Alley’: an 85-mile stretch of land along the Mississippi River from New Orleans to Baton Rouge, primarily populated by low-income and African American communities, which has a very high concentration of petrochemical plants, refineries, landfills and factories.Footnote 247 For decades, local communities in this area have been affected by high incidences of cancer, skin inflammation, significant respiratory problems and many other health threats.Footnote 248
However, Cancer Alley is just one of many such ‘sacrifice zones’: millions of people around the world suffer from constant exposure to environmental pollution and the resulting human rights violations, as confirmed by the 2022 report of the UN Special Rapporteur on human rights and the environment.Footnote 249 Of course, in the case of plastic pollution it is not just new plastics plants that can endanger human rights but also single-use plastic products already released into the environment, as observed by various courts. The human rights approach to plastic pollution, traditionally overlooked in the regulation of plasticsFootnote 250 which has been developed by courts, is therefore fully consistent with the general trend of national and supranational courts’ contribution to strengthening the regulatory response to environmental problems.Footnote 251
However, the contribution of courts to developing the regulatory response to plastic pollution has not been completely unhindered. One of the impediments is the traditional problem of the non-implementation of court orders, as demonstrated by the Supreme Court of Nepal's inquiry into the government's failure to implement the ban on plastic bags, as ordered by the Court in 2021.Footnote 252 A more specific impediment is the piecemeal regulatory response to plastic pollution that has to some extent bound courts to the confines of existing measures. The most notable examples of this problem are: (a) the successful anti-regulatory claims in Canada, Colombia, Mexico and the US, where the respective courts declared the contested municipal measures ultra vires or pre-empted by higher hierarchy norms; (b) the French BPA case and the South African case of Premier Plastics, where the respective courts declared that the restrictive measures did not apply to the production and export of BPAFootnote 253 and thin plastic carrier bags, respectively; and (c) the unsuccessful claims in the US cases of Duchimaza and Curtis, where the courts held that the lack of adequate recycling facilities did not render statements about recyclability false or misleading.
In the first category of cases, the lack of regulatory measures adopted at the national level prevented the respective courts from upholding the contested local measures. Similarly, in Duchimaza and Curtis, systemic problems, such as the lack of recycling facilities or low recycling rates, were the result of the lack of measures by regulatory bodies that the courts could do nothing about. In Premier Plastics, it was the South African legislature that deliberately created an exemption for the export of such products. In other words, all these examples reflect the fact that, as institutional actors, courts are not tasked with or equipped to craft solutions to plastic pollution.
However, plastic pollution litigation has also raised some important questions that courts have thus far left unanswered (or only partly answered). These include consideration of the end use of plastics in environmental impact assessmentFootnote 254 and the question of consumer information raised in the Earth Island Institute claims.Footnote 255 Such claims are particularly interesting, as they are arising against the backdrop of emerging requirements for extended producer responsibility under the EU Single-Use Plastics DirectiveFootnote 256 and elsewhere,Footnote 257 that involves awareness-raising measures and the costs of cleaning up litter and waste collection. Yet, at this stage, these cases do not allow any concrete conclusions to be drawn about courts’ potential contribution in these fields. Other important questions, such as responsibility for cleaning up plastic pollution that has accumulated in the world ocean and its persisting toxic legacy,Footnote 258 have not been raised before courts at all. Hopefully, such questions will be dealt with by a specialised global treaty, as academics have proposed.Footnote 259
What is clear though is that, however piecemeal, existing regulatory measures at the local, national and supranational levels already provide useful tools for courts in the assessment of regulatory bodies’ and companies’ obligations. As many countries move towards a more comprehensive regulatory response to plastic pollution, coupled with the potential adoption of the first specialised global treaty, courts have developed an impressive toolkit with which to address various questions related to plastic pollution. At the same time, those who oppose regulation will have more restrictions to challenge.Footnote 260 Thus, the role of courts in plastic pollution governance will continue to grow and courts will have further opportunities to address the various questions that are only starting to emerge in plastic pollution litigation. And while litigation cannot possibly solve a crisis of this magnitude by itself, it can help ‘set the agenda and frame the issues in this crisis’, just as occurred with other multi-dimensional and far-reaching environmental and health hazards such as opioids,Footnote 261 tobaccoFootnote 262 and climate change.Footnote 263 As seen throughout this article, the engagement of courts with legal questions concerning measures to prevent further worsening of the global plastic pollution crisis and measures to protect humans and the environment from its current and future impacts confirms the potential of litigation as a global anti-pollution strategy.
VI. CONCLUSION
Plastic pollution is caused by the ever-growing accumulation of countless sources of diffuse transboundary pollutants. It is the result of widespread use of products that are so deeply entrenched in modern life that banning them completely ‘is highly unlikely to succeed’,Footnote 264 at least for the time being. The issue raises complex questions of law, science and economics and yet, as demonstrated in this article, such complex questions are not beyond judicial scrutiny. From holding private polluters accountable to considering the constitutionality of restrictions on certain plastic products and to ordering regulatory bodies to adopt or implement such measures, courts are playing a major role in plastic pollution governance. It is true that persisting gaps in the regulatory response have to some extent hindered the courts’ contribution to the tackling of this crisis, but as the overall regulatory response gradually becomes more comprehensive, so does the ability of courts to address the various legal questions that this crisis poses.
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