Bloomberg Law
April 23, 2020, 8:00 AM

INSIGHT: Is Plastics Litigation the Next Public Nuisance?

Douglas A. Henderson
Douglas A. Henderson
King & Spalding LLP
Matthew J. Blaschke
Matthew J. Blaschke
King & Spalding LLP
Kristen R. Fournier
Kristen R. Fournier
King & Spalding LLP
Karl R.  Heisler
Karl R. Heisler
King & Spalding LLP

A decade ago, it began with a dispute over plastic bags at grocery store check-out lines. That contest tailed off with the growth of re-useable bags and plastic bag bans in many local communities.

Then it was a debate over microbeads in cosmetics, which subsided after passage of the Microbead-Free Waters Act of 2015 and similar state bans.

Now, litigation against plastics appears to be ramping up again. But is plastics the fuel for the next mass tort?

Increased Plastics Litigation

Like the substance itself, the litigation battle over plastics takes many forms. Earlier this year, Earth Island Institute filed suit against consumer products manufacturers, alleging their plastics use is killing marine animals.

According to Earth Island, companies that sell products directly to consumers in single-use-plastic packaging failed to use sustainable packaging materials, misled the public regarding the causes of plastic pollution, and falsely advertised the recyclability of their products. Earth Island seeks money damages and the costs of abating microplastics pollution on California’s beaches and in California’s waterways.

Earth Island wraps its case in nuisance and other tort causes of action, including strict products liability, negligence, and negligent failure to warn. Taking this approach, it claims, as a manufacturer of a product that eventually causes public harm, the defendants are in the best position to understand the risks of its products and to protect the public from them.

While the legal claims remain to be decided, the plastics warning flag is now up for retailers, distributors and manufactures alike.

Plastics Targeted Under Environmental Statutes

Other lawsuits target plastics under environmental statutes. In Texas, the San Antonio Bay Estuary Waterkeeper sued Formosa Plastics Corp, claiming that microfine plastic pellets were being discharged into creeks and rivers in violation of its wastewater permit, which prohibited the discharge of “floating solids or visible foam” in other than “trace amounts.” After a bench trial, the court ruled in favor of the plaintiff.

In South Carolina, the Charleston Riverkeeper filed a citizen suit under the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act against Frontier Logistics, alleging that the release of plastic pellets, known as “nurdles,” presented an “imminent and substantial endangerment to health or the environment” in violation of RCRA and that the unpermitted discharge of plastic pellets into waters of the United States violated the Clean Water Act.

Still other lawsuits seek to force the U.S. Environmental Protection Agency (EPA) and other agencies to ratchet down on plastics regulation. In February, the Center for Biological Diversity, the Surfrider Foundation, and Sustainable Coastlines Hawaii sued the EPA, alleging that the agency’s approval of Hawaii’s list of “impaired waters” failed to account for plastic pollution. The EPA responded just a few days ago by advising Hawaii that the EPA was withdrawing its approval “specifically with respect to the consideration of plastics.”

That same month, the Sierra Club, the Center for Biological Diversity, and other groups petitioned the Louisiana Department of Environmental Quality to challenge air quality permits issued to Formosa for its 14-plant chemical complex planned for construction in the predominantly African American community of St. James Parish, Louisiana.

For these groups, the state failed to meet Clean Air Act requirements and air emissions from plastics production would “vastly add to the significant environmental and health burden that African American communities in and near St. James must suffer.”

Late last year, 364 organizations banded together to sue EPA Administrator Andrew Wheeler to force the EPA to promulgate more stringent air quality standards for the petro-plastics industry. The organizations allege that hazardous air pollutant and greenhouse gas emissions from these plastics facilities are endangering the environment and public health and welfare.

Still earlier, 280 organizations sued Wheeler to force the EPA to promulgate more stringent wastewater restrictions on the plastics industry. Citing to industry plans to increase plastics production “by at least 35 percent,” petitioners in these cases allege “the plastics industry is among the dirtiest and most toxic in the nation, fouling air and water of some of our poorest communities.”

Plastics Litigation as Nuisance Law

Do these cases signal the beginning of full-on war on plastics? No doubt the number of plastics lawsuits filed just this year alone signals a discernible litigation trend. From certain perspectives, many of these lawsuits can be viewed as straightforward environmental lawsuits aimed at specific plants and raising specific regulatory issues.

But the Earth Island case is different, not just from environmental suits like Charleston Riverkeeper, but also from opinions expanding the doctrine of public nuisance to address local issues, such as the consequences of lead paint in homes.

Read holistically, Earth Island invites a court to transform the everyday use of plastic bottles—and indeed the use of plastics in society more generally—into a national tort. And, like the recent spate of climate change cases, it asks a court to single-handedly address what plaintiffs have already described as a global problem.

If allowed to proceed, Earth Island and any follow-on lawsuits would almost certainly lead to a patchwork of multiple—and very likely different—answers to a large-scale environmental issue that is already being addressed by national governments across the globe. Regardless of competing views around the manufacture and use of plastics, is that truly the most productive and efficient approach to the issue?

A similar public-nuisance theory was advanced in California state court to address alleged local impacts of the global problem of climate change. In denying plaintiffs’ request to send their case back to state court (while expressing doubt about the judiciary’s role in addressing climate change), federal Judge William Alsup in California rightly observed that “fifty different answers to the same fundamental global issue would be unworkable.”

Surely the multi-faceted plastics industry deserves a future more coherent and secure than one that might be carved by a jury in a single public nuisance case.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Douglas A. Henderson is a partner at King & Spalding in the Atlanta office, where he focuses on environmental litigation and toxic torts.

Matthew J. Blaschke is a partner at King & Spalding in the San Francisco office, where he focuses on products liability litigation and business litigation.

Kristen R. Fournier is a partner at King & Spalding in the New York office, where she focuses on pharmaceutical and toxic torts litigation.

Karl R. Heisler is a partner at King & Spalding in the Chicago office, where he focuses on environmental litigation and regulatory counseling.