Recouping city pollution costs: CIEL report details legal avenues for action against plastic producers

01 Jul 2024 --- A new report released by the Center for International Environmental Law (CIEL) has detailed the burden plastic pollution places on urban centers throughout the US. The findings show how rampant packaging usage drains governmental resources and damages human and environmental health, and presents policy roadmaps for resolving the crises.

The report, titled “Making Plastic Polluters Pay: How Cities and States Can Recoup the Rising Costs of Plastic Pollution,” places the pollution blame squarely on FMCGs and mass producers of single-use plastic products.  

In 2019, the management of plastic waste cost more than US$32 billion globally. These costs are on track to increase, and cities bear the brunt of the financial costs. 

For example, a 2023 survey conducted in Louisiana found that state entities were collectively spending more than US$91.4 million annually on litter cleanup and prevention — a cost increase of more than 65% since 2010.

Similarly, the Texas Department of Transportation, in 2021, spent more than US$50 million to clean only roadside litter (a 42% increase since 2004), while Pennsylvania estimated an annual roadside litter price tag of US$68.5 million across nine cities 

Steven Feit, one of the report’s authors and a senior attorney and legal and research manager at CIEL, tells Packaging Insights: “Cities and states know that action is needed to address this crisis and, as federal legislators drag their heels, local governments can, and have, taken matters into their own hands.” 

Waste management is usually one of the biggest costs city authorities must budget for., the report notes.“The state of New York and the city of Baltimore have already filed suit to hold plastic polluters accountable, while the state of California has an active investigation into plastic producers.” 

Litigation avenues
The report encourages litigation against plastics producers and distributors and details three legal doctrines with the most power for obtaining accountability. These are: nuisance, product liability and consumer protection. 

Nuisance law allows state and local government plaintiffs to seek judicial compensation where the rights of the public have been infringed. Nuisance has been a “remarkably versatile” legal doctrine, the report states, evolving to account for new and unexpected harms as society evolves. 

Products liability law allows plaintiffs to hold product producers responsible for their impacts — including defective design of entire product lines or failure to adequately warn consumers about potential product harms. 

Finally, consumer protection laws prohibit false advertising and other misrepresentations.

These laws provide action rights on the part of the public in their role as consumers and ensure that misrepresenting product features and misleading people into buying products is recognized as harmful. 

“As consumers become increasingly aware of the damage and harm caused by plastic, they will push harder for smarter, safer alternatives, both by advocating for stricter regulation and voting with their dollars,” says Feit. 

“Rather than clutching to an increasingly hostile market, businesses would benefit from being first to market with solutions that work for people, the planet and profits.” 

Blame game
While CIEL’s report blames FMCGs and plastic producers accountable for the bulk of pollution in US cities, some corporations — notably Unilever — have said that a lack of unified, international policy on plastic pollution makes it impossible for them to take effective action in a competitive market landscape.

Unilever’s global head of packaging, Pablo Costa, made a public statement in May announcing the company will ax its plastic reduction targets, explaining that it cannot sacrifice profits and called on global legislators to enforce blanket regulations that would allow competitors the room to begin making needed reductions.

Feit says that corporate blame on governments is unwarranted. “When a company produces a product that poisons people and contaminates the natural world, the conversation should not be about how to preserve that business model, it should be about the consequences for selling damaging products and how to prevent further harm,” he says. “Companies that cause harm have a responsibility to avoid doing so.” 

“We agree that legislation and regulation are warranted. We strongly advocate for universal and legally binding caps on production and are advocating for such measures to be included in the plastics treaty that is currently under negotiation.”

“To say that the government is to blame for the actions of the industry is backward, especially when — as the report points out — the plastics industry has repeatedly obstructed efforts to regulate plastic products and packaging. Governments at all levels have a duty to protect their citizens when companies put us at risk — that is precisely what this report calls on attorneys with enforcement authority to do.” 

By Louis Gore-Langton