New Plastics Bill Would Place a Moratorium on All Permits for New Plastics Facilities Until Massive Slate of New Environmental Regulations Adopted

The Protecting Communities from Plastics Act (S. 5163/H.R. 9388), introduced late last week by Senator Cory Booker (D-NJ), Representative Jared Huffman (D-CA-02), Senator Jeff Merkley (D-OR), and Representative Alan Lowenthal (D-CA-47), may be the first of many evolving efforts aimed at reducing plastic production and increasing attention toward environmental justice. Although the bill will not likely gain traction, petrochemical facilities with planned expansions should watch this bill for developments. Even without passage, elements of the bill could well make their way into state legislation.

Key Takeaways

The proposed bill is comprehensive, purporting to require the Environmental Protection Agency (EPA) to regulate various elements of the plastic and petrochemical industry under the authority of multiple federal environmental statutes, some of which the bill would also amend. Source reduction targets, permit restrictions, and grant programs to incentivize reuse and refill projects are just some mechanisms the bill would employ to achieve its lofty aspirations.

Perhaps most notably, the bill imposes a “Temporary Pause Period” on EPA’s ability to issue new permits under the Clean Air and Clean Water Acts (CAA, CWA). The pause has teeth because it would run from the date of enactment unless and until EPA fully implements all of the regulatory changes required by the bill. The Temporary Pause Period also directs EPA to object to issuance of state-agency-administered CAA and CWA permits.

In addition to the moratorium, as it specifically concerns permitting, the bill mandates that EPA promulgate rules requiring that all permit applications state how a proposed operation or expansion would impact any fenceline and environmental justice communities. Under the proposed legislation, such regulations must further provide communities with the opportunity to attend a community meeting and provide public comment regarding any permit application that could affect them.

Some of the other strict regulatory changes that implicate – and would prolong – the EPA’s permit moratorium include:

  1. Restriction of siting for relevant facilities within five miles of schools, residences, and other community buildings;
  2. Regulation of certain chemicals used in plastics production as toxic substances under the Toxic Substances Control Act;
  3. Regulation of certain plastics products as hazardous wastes;
  4. Establishment of zero-emission/leak free/no discharge standards under the CAA;
  5. In addition to other New Source Performance Standard (NSPS) revisions, the creation of a novel CAA New Source Performance Standard category for petrochemical feedstock and polymer production facilities; and
  6. Revisions of certain CWA effluent limitations associated with petrochemical feedstock and polymer production.

Looking Forward

While many of the bill’s provisions revisit previous legislative efforts (like 2021’s “Break Free From Plastic Pollution Act,” which never advanced), the bill nonetheless reflects a growing wave of plastic and petrochemical opposition. Key provisions, like the permit moratorium, may never gain traction in Congress, however, certain states will likely begin implementing their own versions of the bill, creating a patchwork of laws that could – as is often the case with products and toxic substances regulation – eventually compel some measure of federal management. The core principles underlying the bill won’t be disappearing anytime soon.

The Beyond Petrochemicals Campaign

The bill may well be a product of Bloomberg’s Beyond Petrochemicals effort, the grassroots public health and climate change campaign aimed at preventing increases in US emissions from refineries and petrochemical plants, partly by halting the construction or expansion of 120 planned petrochemical projects. Beveridge & Diamond previously reported about the campaign and provided practical tips for industry to employ and defend their operations against the campaign’s multi-pronged approach.

Beveridge & Diamond assists clients with strategic regulatory compliance and risk assessment, enforcement and investigation, and litigation matters arising from petrochemical production or use. Our Infrastructure and Project Development and Permitting team helps clients successfully permit new infrastructure and litigate infrastructure permitting challenges. Additionally, B&D's multidisciplinary team combines substantive expertise with air and chemical regulatory programs, as well as environmental justice to help our clients succeed. For more information, please contact the authors.

Deploying decades of experience and interdisciplinary industry and practice teams – as well as robust litigation capabilities – we stand ready to assist companies who find themselves in the crosshairs of challenges related to Bloomberg Philanthropies’ Beyond Petrochemicals Campaign. In-house counsel, EHS professionals, and business leaders at companies and trade associations are invited to join our December 15 webinar, where we will discuss observations on this most recent anti-industry campaign and how companies can best prepare to respond. For more information, please submit this form or contact the authors.