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The Looming Legal Battle over Plastics

Introduction

Environmental litigation has been an active area of business for the trial bar in recent years. From climate change litigation to cases alleging PFAS contamination, plaintiffs’ lawyers have sought to regulate industries through litigation while simultaneously lining their own pockets. Now, plaintiffs’ lawyers are partnering with local and state governments, NGOs and environmental activists to target corporations they allege are responsible for the “plastics pollution crisis.”

The trial bar is seeking to represent local and state governments in a concerted effort to shift costs associated with recycling and pollution onto plastic manufacturers and the oil and gas industry. These lawsuits create legal chaos. It may fill government budget gaps and improve the bottom line for trial lawyers, but it does little to help people or solve problems.

The Playbook

Whether it’s the tobacco litigation from the 1980’s, or the more recent opioid and climate change litigation, the trial lawyer playbook remains the same. Trial lawyers pitch litigation as a way of addressing complex public policy concerns to friendly local and state governments while offering to manage it for them on a contingency fee basis. The trial lawyers convince these governments that litigation will yield the necessary resources to fund solutions and fill state coffers.

Plaintiffs’ lawyers actively court governments as “clients” because they understand that bringing lawsuits in the name of a government may provide them with power and leverage not present in ordinary “private” civil litigation. It also entitles them to what are expected to be outsized legal fees in the event of a verdict or a settlement. The incentive for these lawyers is to maximize their fees regardless of what is truly in the public interest.

The problem with this approach is that this is not the courts’ intended purpose. The nation’s civil justice system, which includes lawsuits brought by local and state governments, exists to resolve disputes – not to perform the functions of legislators and regulators. Broader public policy challenges should be addressed by those entrusted with those responsibilities. They are obliged to serve and protect the public, and they are accountable to us all. By contrast, plaintiffs’ lawyers operating on a contingency fee basis are driven by a profit motive.

The Growing Litigation Problem

In September 2024, California’s attorney general Rob Bonta joined AGs in Connecticut, New York, and Minnesota in filing litigation related to plastics. Bonta and a coalition of environmental activist groups, including the Sierra Club, filed a pair of lawsuits against Exxon Mobil Corp., alleging Exxon is responsible for litter across California and the Pacific Ocean due to the production and recyclability of plastic. The California lawsuits claim violations of California’s public nuisance, natural resources, false advertising, environmental marketing, and unfair competition laws. The lawsuits attack the company’s use of its advanced recycling technologies that recycle plastic waste.

A representative for Exxon responded to the lawsuits by saying, “Instead of suing us, they could have worked with us to fix the problem and keep plastic out of landfills…To date, we’ve processed more than 60 million pounds of plastic waste into usable raw materials, keeping it out of landfills.”

An amicus brief filed by the U.S. Chamber Coalition in a similar case pending in California argues that cases like these improperly seek a public policy objective – banning plastic – through the courts rather than the legislature. The brief also points out the unproductive nature of imposing liability for costs resulting from litter and the failure to recycle.

The California filing came a few months after the Mayor and the City of Baltimore filed a similar lawsuit against Pepsico and The Coca-Cola Company (and a few other companies). The June filing marks one of the first by a municipality. The City is represented by multiple plaintiffs’ firms including the Milberg Firm, Napoli Shkolnik and Smouse & Mason. In October, Los Angeles County followed in Baltimore’s footsteps, and filed suit against Pepsico and The Coca-Cola Company. The County is represented by Motley Rice LLC.

This, however, is likely just the tip of the iceberg. Former Governor Asa Hutchison has expressed concern about the growing coordinated efforts. “Such litigation, combined with the fact that attorneys general from across the country and their staffs are continuing to organize for a plastics litigation war show how these efforts appear to be gaining steam.”

In September, the Michael Bloomberg-funded State Energy & Environmental Impact Center at New York University School of Law held a coordination event titled Plastics: A Forum on Research & Advocacy for state attorneys general and other interested parties. Attorneys general from each of the states that have filed litigation spoke as part of the multi-day agenda.

The State Energy & Environmental Impact Center at the New York University School of Law was established and initially funded in 2017 with a $6 million grant from Bloomberg Philanthropies. Its stated mission is to “support state attorneys general in defending and promoting clean energy, climate and environmental laws and policies,” including through “direct legal assistance to interested attorneys general to identify and hire NYU Law Fellows who serve as special assistant attorneys general.”

The Center is no stranger to being on the forefront of environmental litigation and has been one of the main drivers of climate change litigation by embedding its fellows in state attorneys’ general offices. It proposes the idea of embedding its lawyers to a state attorney general or a top aide. If there is interest, the AG’s office makes a formal request to the Center and outlines its needs. The Center then farms out the lawyers to work specifically on climate and other environmental issues.

The practice of allowing private interests to pay their way into positions of authority in state government offices does not serve the public interest and raises significant ethical concerns.

“Instead of suing us, they could have worked with us to fix the problem and keep plastic out of landfills...To date, we've processed more than 60 million pounds of plastic waste into usable raw materials, keeping it out of landfills.”

– A representative for Exxon

Positive Development

New York Attorney General Letitia James’ quest to hold Pepsico and its subsidiary Frito-Lay responsible for polluting the Buffalo River and nearby waterways hit a substantial road- block after her case was thrown out by the State of New York Supreme Court for Erie County. Judge Emilio Colaiacovo dismissed the case in October, finding that the attorney general was making “phantom assertions of liability that do nothing to solve” the pollution and recycling problems in Buffalo. He continued, “This is a purely legislative or executive function to ameliorate and the judicial system should not be burdened with predatory lawsuits that seek to impose punishment while searching for a crime.”

Here, Attorney General Letitia James argued that Pepsico should be held liable for other people failing to properly discard their products, which then accumulated in the Buffalo River and other waterways. She contended that the company had contributed to a public nuisance by polluting the river and engaged in deceptive and misleading statements about the recyclability of their products because, among other factors, the company did not meet internal plastic reduction goals.

The court issued a strong rebuke of the arguments made by the attorney general, pointing to the fact that it was other people that had polluted the waterways, not the company. “As Defendants rightly note, there are recycling bins everywhere along canalside and the other water tributaries… Yet, people continue to litter. Instead of pursuing those who commit the act, the Attorney General wishes to penalize those who produce the discarded item. This theory has never been adopted by a court in this state or any other.”

“Absent the legislature passing a law or the executive branch issuing an order establishing such a theory of liability or imposing restrictions on what type and amount of plastic can be used, this lawsuit is simply policy idealism.”

“This is a purely legislative or executive function to ameliorate and the judicial system should not be burdened with predatory lawsuits that seek to impose punishment while searching for a crime.”

– Judge Emilio Colaiacovo

The Search for Litigation Success… but Who Will Benefit?

Experience demonstrates that lawsuits motivated and brought by contingency-fee lawyers on behalf of governmental entities will not solve complex public policy issues and proceeds are diverted for other purposes. Governments and their lawyers point to the “success” of the tobacco litigation from a generation ago as a basis to justify litigation. A closer examination of that experience, however, shows that the tobacco settlement did little for smoking cessation efforts. For example, in FY 2024, states will collect $25.9 billion from the 1998 tobacco settlement and tobacco taxes, but will spend just 2.8 percent of it on prevention and cessation programs. Contingency fee lawsuits will do little to help the victims while lining the pockets of trial lawyers.

There is reason to be skeptical as to whether a significant portion of any sum that a state or local government receives as a result of plastics litigation would actually be spent on projects associated with pollution or instead go to lawyers’ fees, unrelated projects, or a state’s general fund.

Time for Real Solutions

Former Secretary of Health and Human Services Dr. Tom Price recently laid out where the real focus should be when it comes to plastics and pollution. Rather than drumming up litigation that only serves the profit-seeking interests of the trial bar, he pointed out how leaders should be discussing “the entirety of the science, best practices, and solutions.”

He also expressed concern about the impact that litigation could have on public health. “Plastics enable the production of safe, sterile medical devices and packaging, which are essential for preventing infections and ensuring patient safety. They are also used in various health care applications… Additionally, plastic packaging helps maintain the integrity of medications and vaccines during storage and transport, protecting them from contamination and extending shelf life. Banning them could lead to shortages of essential medical supplies that could have serious follow-on effects.”

Conclusion

The simple reality is that significant problems arise when states, cities, towns, counties, and other local entities across the country each bring lawsuits seeking money or action on the same issue. The authority to fully resolve the litigation is complicated by the number of entities involved. Competing interests make judicial resolution much more difficult, if not impossible, to achieve. The protracted litigation may delay implementation of programs to actually help resolve the societal ills.

States must ensure that any litigation it initiates serves the public interest and they should combat problems that arise with localities litigation. Major public crises demand a major response by government leaders, but a continued wave of contingency-fee litigation brought by state and local governments is the wrong approach. It won’t do much to help victims or solve the crisis, and instead creates lasting problems for the civil justice system.