Winter 2022

Guest Editorial: Microplastics Legal and Regulatory Update

By Jonathan King, Esq., Squire Patton Boggs

Primary microplastics – purposefully manufactured tiny plastic pellets that are used to make larger plastic items – are more easily physically controlled and regulated, and have appeared at the center of limited legislation, regulations, and litigation in recent years. In contrast, secondary microplastics – small fragments of plastic particles formed as a result of wear and tear of larger pieces of plastic – present an intractable problem, with no obvious solution, for legislators, regulators, and plaintiffs. Secondary microplastics represent a confounding environmental contamination issue that does not easily lend itself to traditional environmental regulation. This article will focus on the likely legal and regulatory implications of efforts to address secondary microplastics pollution.

A major challenge of secondary microplastics is that they are now known to be ubiquitous in the environment, but have no clearly identifiable source other than the nearly infinite consumer products from which they break down.”

A major challenge of secondary microplastics is that they are now known to be ubiquitous in the environment, but have no clearly identifiable source other than the innumerable consumer products from which they break down. These diverse microscopic plastic particles are released into the environment not as the result of a specific manufacturing or industrial process or from a specific spill or point source discharge, but from the everyday use of items such as tires and synthetic textiles or from wear and tear of post-consumer single-use plastic waste, among myriad other sources. Because secondary microplastics pollution results largely from consumer or post-consumer uses of plastic, microplastic particles do not fit neatly into traditional environmental regulatory schemes. For example, perhaps the most obvious regulatory check on plastic pollution in US waterways and marine environments would be the Federal Clean Water Act (CWA). The goal of the CWA is “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters” (33 U.S.C. 1251 et seq., Sec. 101.(a)). The CWA achieves this goal largely by regulating point source discharges of specific pollutants to waters of the US (generally defined as navigable surface waters). Point source discharges are those from discrete conveyances such as industrial facility or wastewater treatment plant outfalls, where effluent enters a water body. The CWA requires these point sources to obtain a Section 402 National Pollutant Discharge Elimination System (NPDES) permit, which regulates the amount of pollutants an entity can safely discharge to protected waters. Because the CWA focuses largely on limiting pollution by regulating point source discharges, this statute is ill-equipped to protect waterways from microplastics released from every nook and cranny of everyday commercial activity.

Secondary microplastics are like snowflakes—no two are the same. Due to their variable physical form and chemical compositions, along with how they are released into the environment, traditional environmental regulatory tools may not be a viable approach to controlling secondary microplastics pollution. Advocacy groups recognize this difficulty and, for this reason, their efforts to address microplastics issues have largely targeted disincentivizing and eliminating plastic production altogether. This approach has taken a number of forms, including the following.

• First, two petitions have been made to the United States Environmental Protection Agency (US EPA), one under the CWA and one under the Clean Air Act (CAA), proposing to further regulate the petrochemicals industry. These petitions aim to tighten the regulations on plastics producers.
• The Break Free from Plastic Pollution Act (BFPPA) is federal legislation proposed in early 2020 that would place the burden on manufacturers to reduce wastes from certain products, particularly single-use plastics. The National Caucus of Environmental Legislators has encouraged individual states to adopt the Federal BFPPA in their own states.
• With the Federal BFPPA stalled, individual states have begun passing legislation subjecting single-use plastics to extended producer responsibility (EPR) frameworks. Most notably, Maine and Oregon passed EPR laws for single-use plastics in 2021, and California is poised to vote on a similar ballot measure in November 2022. EPR laws require entities throughout the supply chain to take responsibility for the disposal of select plastic products. “A major challenge of secondary microplastics is that they are now known to be ubiquitous in the environment, but have no clearly identifiable source other than the nearly infinite consumer products from which they break down.”
• There has also been civil litigation alleging (1) violations of federal environmental statutes targeted at enforcement, and (2) state common law claims of public nuisance, product defect, and consumer protection claims.

Civil litigation surrounding secondary microplastics may emerge in coming years as the science evolves. In recent years, Plaintiffs have shown a renewed interest in public nuisance claims for ubiquitous pollution caused by economic activity. These lawsuits have involved lead-based paint, per-and polyfluoroalkyl substances (PFAS), climate change, and plastic pollution. While existing environmental regulations and health-based standards may not be enough to hold defendants liable in these contexts, the common law is increasingly seen as a viable avenue to limit economic activities linked to global pollution issues. Companies that use plastic in their products should pay attention to these lawsuits; however, it is unclear how they might apply to microplastics in the future, because causation will be particularly hard to prove with microplastics. Currently, it is well understood that microplastics are ubiquitous in the environment and in humans and animals. However, the health risks of microplastics exposure to living organisms, including humans, are unclear. Manufacturers, producers, and retailers in the plastics supply chain should follow public nuisance suits related to plastic pollution carefully, but until the science can show that microplastics are causing injuries to human health or the environment, plastic pollution litigation is likely to focus on macroplastic debris more than microplastics.