Earth Island Institute, which publishes Earth Island Journal, has filed a first-of-its-kind lawsuit against ten companies — including giants like Coca-Cola, PepsiCo, and Nestle — for their contribution to the plastic pollution crisis.
Coke, Pepsi, and Nestle alone are responsible for 14 percent of plastic that pollutes our oceans, according to a 2018 report by the global campaign Break Free from Plastic. A 2019 audit, also conducted by Break Free from Plastic, identified several of the other companies named in the lawsuit as among those most responsible for plastic pollution.
“Fundamentally, the lawsuit seeks to hold corporations accountable for their share of plastic pollution and their claims that plastic packaging is recyclable,” says Sumona Majumdar, general counsel for Earth Island, which filed the lawsuit on behalf of itself and several fiscally-sponsored projects that are fighting to stop plastic pollution and protect marine environments. “For too long, they have pushed those costs onto the public, and that includes nonprofits like Earth Island that are using charitable funds to clean up their mess.”
Plastics are pretty much inescapable these days — and that’s by design. The plastics industry has flooded the market with just about every conceivable type of single-use plastic product, including bags, packaging, cutlery, and much more. Much of this non-biodigredable waste ends up in our oceans, rivers, and coastal areas, while still more will take up space in our landfills for generations to come.
The lawsuit, which was filed in California state court today and includes public nuisance, breach of warranty, and negligence claims, among others, follows in the vein of similar efforts to hold Big Oil, Big Tobacco, and Big Pharma responsible for their knowing contribution to public harms and simultaneous effort to obscure those harms and deflect blame. Majumdar says the legal strategy is similar because Big Plastic’s playbook has been similar to that used by these other industries.
“These companies push a product and then create misinformation campaigns so the public isn’t fully aware of the harms of the products when making purchasing decisions,” she says.
In the case of plastics, a major part of that misinformation campaign has been the idea that plastic is recyclable, and that any shortcomings when it comes to recycling are those of the consumer, not the producer.
“This is the first lawsuit directly to take on these plastic peddlers who for years have spread the fake narrative that their products can be recycled when they know in many cases this is simply not true,” says Josh Floum, president of Earth Island’s Board of Directors.
In reality, the vast majority of plastics labeled as recyclable will never be recycled, either in the US or globally. Of the estimated 8.3 billion metric tons of plastic that have been produced since 1950, when the plastics industry took off, only 9 percent has been recycled. What’s not recycled is either incinerated — a practice that raises a host of concerns about air pollution, public health, and environmental justice — or ends up as waste. (Most plastic can only be usefully recycled once, which means even that 9 percent is only temporarily diverted from the waste stream.)
Low recycling rates in the United States can be attributed to a variety of factors. For one, the cost of producing “virgin” plastics using petroleum is relatively low compared to producing recycled plastic products. Ninety-one percent of Coke’s packaging is made of virgin plastic, for example, and at Unilever the figure is 99 percent. For another, recycling facilities in the US simply can’t process the volume of plastic produced here. In fact, in recent years, official recycling rates in the US have dropped even lower as countries like China and Malaysia that used to accept our “recyclables” have closed this plastics pipeline, though the ethics and environmental benefits of this waste trajectory have long been in question. Experts estimate that recycling rates in the US could now be closer to 3 or 4 percent.
The environmental toll of using so much plastic and recycling so little is well documented. Production itself is a major source of greenhouse gas emissions. Plastics are a petroleum-based product, and an estimated 4 to 8 percent of global oil consumption is related to producing them. (Plastics incineration also releases greenhouse gases into the atmosphere, contributing to the global climate crisis.)
The harms don’t end with production. An estimated 150 million metric tons of plastic currently pollute the marine environment, and an additional 8 to 20 million tons are added each year. This plastic breaks down into smaller and smaller pieces over time, and is commonly found in sand, seagrass, and more. It is also commonly ingested by marine and terrestrial animals. Plastic waste also often entraps or constricts wildlife, diminishing their ability to move and eat. Humans also ingest microplastics, typically through drinking water.
As David McGuire, director of Shark Stewards, another Earth Island project, says, plastic waste is insidious. “As a marine biologist, as someone who lives every day in and around the ocean, I experience this first hand and I experience it every day,” he says. “There’s not a day that I swim in the San Francisco Bay or that I surf and I don’t pick up a piece of plastic.”
By suing major corporations that made money from the sale of single use plastics, Earth Island hopes to recoup some of the costs of cleaning this plastic out of oceans and waterways, and mitigating harm to humans and wildlife alike in California.
If this lawsuit is anything like recent climate litigation seeking to hold big oil accountable for its contribution to climate change, it could be the first in a tide of lawsuits by other organizations, as well as cities and states, to hold Big Plastic responsible for global plastic pollution, and force major actors to rethink their business practices. Or as Dianna Cohen, CEO and co-founder of Earth Island’s Plastic Pollution Coalition, says, “This lawsuit is a step towards a world free of plastic pollution. The writing is on the wall that the system that has been created is not sustainable.”