Plastics on trial: a briefing series on evolving liability risks related to plastics 3) In the environment

In this Brief, we explore emerging litigation trends relating to sources of plastics leakage into the environment: plastic pellets and plastic waste.

• In 2019, an estimated 22 million tonnes of plastics leaked into the environment. Plastic has been identified in all major ocean basins, rivers, lakes and terrestrial environments.
• Plastic pellets – plastic beads from which products are manufactured – are an example of primary microplastics. They leak into the environment at various stages of production, handling, and transport. NGOs around the Globe have launched legal action to hold companies accountable for the impacts of leaked pellets across the Globe. In the US, plastic producer, Formosa, was sued by residents and an environmental group for illegally discharging pellets around their manufacturing plant in Texas, resulting in a US$ 50 million settlement – the largest ever settlement for a citizen lawsuit under US federal clean air and water laws. Downstream, a logistics company in South Carolina faced a similar lawsuit from conservation groups, resulting in a US$ 1 million settlement.
• In Europe, NGOs have appealed to relevant enforcement authorities in respect of pellet leaks. In a case against petrochemicals company Ducor in the Netherlands, the authorities took swift action and threatened Ducor with financial penalties for future infringements.
• Following a major maritime disaster in the Indian Ocean, which led to the release of 87 containers of pellets into the ocean, along with hazardous chemicals, oil and metals, NGOs have launched legal actions requesting the authorities to investigate the impacts of the disaster and to take action to obtain compensation and remediation from those responsible. If successful, this will result in the Sri Lankan government claiming damaging against the companies involved in shipping the pellets.
• Many stakeholders are directly affected by plastic pollution, including economically, making a wide pool of potential plaintiffs. In the Philippines, a diverse group of stakeholders impacted by plastic waste – from fisherfolk, to waste pickers – have launched a legal action against the government seeking to hold them accountable. We consider the likelihood of future cases from such claimants directly against corporate actors, as well as the possibility of local governments launching cases to recoup the substantial costs of cleaning up plastic waste from companies that contribute to the problem.
• In the US, environmental NGO Earth Island Institute has launched a first-of-a-kind legal action against 10 consumer goods companies, including the likes of Coca-Cola and Pepsico for their contribution to the plastics crisis, alleging negligence and public nuisance as well as challenging ‘recyclability’ claims made by companies. The NGO has requested – among other measures – a court order for the cost of remediating harm caused to the environment.
• New research linking plastic producers to plastic pollution finds that just 20 companies are behind the majority of the world’s single-use plastic waste. We consider how similar developments in climate research enabled stakeholders to identify defendant companies for lawsuits and demonstrate that they had a measurable contribution to climate change in such cases, suggesting that this may be on the horizon for the plastics industry.

Read Brief 1) Greenwashing.

Read Brief 2) Hazardous chemicals. 

Read Brief 4) Waste disposal & recycling.