Plastic Pollution: 2020 Edition

By: Jillian Aicher

Throughout its “lifecycle,” plastic poses major risks to environmental and human health,[1] affecting “terrestrial, aquatic, and atmospheric environments.”[2] Health-harming toxins released from raw materials extraction (i.e., oil and natural gas); refinement- and production-associated air pollution; toxins inhaled or ingested through microplastics; and food chain contamination are some of the many plastic-associated public health impacts.[3]  Ecosystems and wildlife also notably suffer from plastics pollution: studies have observed “overwhelming evidence” of “direct and indirect deleterious effects of microplastic pollution” on coastal species,[4] with 8 million metric tons of the substance finding its way into the ocean each year.[5] Once plastic enters the environment, its impacts are long lasting: in 2019, the Center for International Environmental Law found that “Roughly two-thirds of all plastic ever produced has been released into the environment and remain there in some form—as debris in the oceans, as micro- or nanoparticles in air and agricultural soils, as microfibers in water supplies, or as microparticles in the human body.”[6] The material has even become a “key geological indicator” of the Anthropocene.[7]

Since the beginning of the COVID-19 pandemic, plastic pollution has been on the rise.[8] Increased medical waste, frontline workers’ need for personal protective equipment,[9] the shift to takeout dining and citizen demand for single use plastics, and cheaper raw materials have all contributed to this trend.[10] While public health and safety must remain a top priority during the COVID-19 response,[11] researchers also urge plans and policies should “reflect a balance between public health and environmental safety as they are both undoubtedly connected.”[12] Additionally, scientific evidence has demonstrated the virus may last longer on plastic than other materials, suggesting “bags made of paper are likely to be less risky than those made of plastics.”[13] This finding led environmental groups to warn against the plastic industry’s push for widespread plastic use as a COVID-19 cautionary measure,[14] and experts have advocated “coordinated commitment” to “strict policies against plastic pollution” during these uncertain times.[15]

One pre-pandemic legal solution to the plastic pollution problem – plastic bag laws – also faced setbacks in the United States due to COVID-19.[16] Many states prohibited reusable bags and items due to hygiene precautions as a pandemic emergency response, reversing or deferring their bag bans.[17] New York State in particular, which adopted the New York State Bag Waste Reduction Act in April 2019[18] (which technically became effective in March 2020)[19]delayed enforcement due to the pandemic and a legal challenge from Poly-Pak Industries, a plastic bag manufacturer.[20] However, in August 2020, a New York State Supreme Court Judge upheld the Act, and the Department of Environmental Conservation (DEC) began enforcing the law on October 19, 2020 [21], offering a glimpse of good news for the movement toward plastic waste reduction during this uncertain time.

In upholding New York’s plastic bag ban, the State Supreme Court rejected Petitioners’ (Poly-Pak, along with supermarket and business owners) arguments that the law was void for vagueness; inconsistent with a 2008 New York State bag recycling law; unconstitutional; unlawfully ultra vires; and arbitrary and capricious.[22] The court read the 2008 Bag Recycling Act in harmony with the 2019 Bag Reduction Waste Act;[23] found Petitioners “failed to meet their heavy burden of demonstrating any internal conflict in the Bag Reduction Act rendering it unconstitutionally vague”[24]; held Poly-Pak lacked standing (and even if it had standing, failed to prove the law violates NYS Constitution’s “anti-gift” clause);[25] stated DEC could “adopt regulations that go beyond the statute itself as long as they are consistent with the statutory language or its underlying purpose”;[26] and rejected as legally unsupported Petitioners’ argument that the pandemic “provides grounds to invalidate” the law.[27] The court also accepted amici Earthjustice’s ultra vires argument, invalidating DEC’s regulatory loophole that exempted non-film plastic bags as beyond the agency’s authority and inconsistent with the Act’s history and purpose.[28]

While New York’s plastic bag ban might not be perfect – bag ban legal experts have criticized the law’s preemption of local ordinances and failure to “mandate a fee on all available bags”[29] – it is a positive advancement in terms of plastic waste reduction. The Poly-Pak decision solidified this step toward beneficial change. Along with circular economy approaches[30] and supply chain transparency,[31] these bag laws and ordinances will be critical moving forward as society attempts to tackle the pervasive plastic pollution problems, which are exacerbated by COVID-19.

Image taken by Author, Jillian Aicher, in Coogee, Australia

 

[1] David Azoulay et al., Ctr. for Int’l Env’t Law, Plastic & Health: The Hidden Costs of a Plastic Planet 1-2 (2019).

[2] Ana L. Patrício Silva et al., Increased plastic pollution due to COVID-19 pandemic: Challenges and recommendations, Chem. Eng’g J., 4 (Aug. 13, 2020).

[3] Azoulay et al., supra note 1, at 1.

[4] Abel de Souza Machado et al., Microplastics as an emerging threat to terrestrial ecosystems, 24 Glob. Climate Change Biology, 1405, 1406 (2018).

[5] Law et al., The United States’ contribution of plastic waste to land and ocean, Sci. Advances 1 (Oct. 30, 2020).

[6] Azoulay et al., supra note 1, at 5.

[7] Id.

[8] Dave Ford, COVID-19 Has Worsened the Ocean Plastic Pollution Problem, Sci. American (Aug. 17, 2020), https://www.scientificamerican.com/article/covid-19-has-worsened-the-ocean-plastic-pollution-problem/; Silva et al., supra note 2, at 3.

[9] Silva et al., supra note 2, at 3.

[10] Id.; Ford, supra note 8.

[11] George Leonard & Nick Mallos, What We Know—and Don’t Know—about Plastics and the Coronavirus Pandemic, Ocean Conservancy (Apr. 16, 2020), https://oceanconservancy.org/blog/2020/04/16/know-dont-know-plastics-coronavirus-pandemic/.

[12] Silva et al., supra note 2, at 1.

[13] Leonard & Mallos, supra note 11.

[14] Id.

[15] Tanveer M. Adyel, Accumulation of plastic waste during COVID-19, 369 Sci. Mag. 1314, 1314 (2020).

[16] Nathan Bomey, Plastic bag bans reversed: States, cities, stores are suddenly banning reusable bags during coronavirus, USA Today (Apr. 8, 2020), https://www.usatoday.com/story/money/2020/04/08/plastic-bag-bans-reversed-coronavirus-reusable-bags-covid-19/2967950001/. 

[17] Id.

[18] New York State Bans Plastic Bags: It’s Not a Model to Emulate, PlasticBagLaws.org (June 17, 2019), https://www.plasticbaglaws.org/blog/2019/6/17/new-york-state-bans-plastic-bags-the-fight-isnt-over-yet.

[19]  Olivia Rosane, New York Will Finally Enforce Its Plastic Bag Ban, EcoWatch (Oct. 19, 2020), https://www.ecowatch.com/new-york-plastic-bag-ban-2648376631.html?rebelltitem=1#rebelltitem1; https://www.dec.ny.gov/press/121415.html.

[20] Id.

[21] Id; DEC Announces Enforcement of New York’s Plastic Bag Ban to Start Oct. 19, 2020, New York State Dep’t of Env’t Conservation (Sept. 18, 2020), https://www.dec.ny.gov/press/121415.html.

[22] Poly-Pak Industries, Inc. v. New York, No. 902673-20 at 4, 45-46 (N.Y. Sup. Ct. Aug. 20, 2020).

[23] Id. at 29.

[24] Id. at 32.

[25] Id. at 33.

[26] Id. at 42.

[27] Id. at 44.

[28] Id. at 43.

[29]New York State Bans Plastic Bags: It’s Not a Model to Emulate, PlasticBagLaws.org (June 17, 2019), https://www.plasticbaglaws.org/blog/2019/6/17/new-york-state-bans-plastic-bags-the-fight-isnt-over-yet.

[30] Adyel, supra note 15 at 1314.

[31] Ford, supra note 8.

One comment

  1. I think that the current pandemic has highlighted the need to consider ecological sustainability in our emergency disaster responses. As you mentioned, we are consuming plastics at a higher rate. Thinking about the sheer volume of single use plastics coming from PPE alone – gloves, gowns, and masks in particular – is depressing. Many people do not have a choice but to use them. This also implicates an increase in oil and petroleum production. Furthermore, the economic downturn due to the pandemic has slowed sustainable investments and may be setting us behind in meeting sustainability goals as well as combatting climate change. Moving forward, it’s imperative that we consider these ramifications when planning for future health events to prevent further environmental degradation.

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