October 16, 2020Article

Citizen Suits Lead the Way for Agencies on Plastics Enforcement

Bloomberg LawKaren Hansen, Bina Reddy

In recent years there has been significant attention on plastics pollution in the world’s oceans and ecosystems, with iconic images of injured marine life that draw universal sympathy and calls to action.

These concerns have found root in the U.S. in the form of citizen suit and government enforcement of existing environmental laws. The focus of this enforcement is not on the post-consumer plastic that has galvanized the public, but rather on pre-consumer plastic waste—squarely targeting operations that produce, transport, and manage plastic materials prior to incorporation into consumer or other products.

Recent citizen suits by environmental non-governmental organizations (NGOs) are forcing courts to define vague qualitative standards, and that is in turn driving broad state agency enforcement of newly-defined standards against facilities that manufacture and manage plastics.

Bottom line: Plastics is the hot environmental issue, and new laws are not necessary to force fundamental change.

Four NGO Actions to Watch

Four NGO lawsuits are shaping the current state of play. Two are citizen suits against individual companies alleging violations of federal environmental laws, and two are against state or federal governments related to approvals involving plastics.

In 2019, NGOs prevailed in a Clean Water Act (CWA) citizen suit against a plastics manufacturer in the Southern District of Texas. (See San Antonio Bay Estuarine Waterkeeper v. Formosa Plastics Corp., Texas). The allegations involved a narrative water quality standard in Texas-issued CWA permits that forbids discharges of floating solids “in other than trace amounts.”

The plaintiffs introduced into evidence hundreds of bags of plastic waste collected from waters downstream of the facility. The judge determined that “trace” meant a “very small” or “barely discernable” quantity, and concluded the plaintiffs’ evidence demonstrated a violation of this threshold.

Notably, evidence of prior state enforcement did not have a preclusive effect, but rather was deemed proof the defendant was a “serial offender.” The consent decree resolving the case ordered $50 million in new and improved technologies and operations to prevent plastics in wastewater, penalties and attorneys’ fees, and various environmental projects—all with a sizable oversight role for the NGOs.

As discussed below, although the lawsuit is over, its outcome is affecting all dischargers in Texas that produce or handle plastics.

The second case of interest is pending in federal court in South Carolina and asserts CWA and Resource Conservation and Recovery Act (RCRA) claims. (See Charleston Waterkeeper v. Frontier Logistics LP). The defendant operates a facility on a marina in Charleston, and like the Texas case, plaintiffs’ evidence includes plastic materials collected from nearby surface waters.

The RCRA claim alleges an “imminent and substantial endangerment” from plastics waste spillage at the facility. The court recently held the plaintiffs have standing and may pursue discovery on both the CWA and RCRA claims.

The other two lawsuits involve NGO actions to reverse government approvals related to plastics. A pending case in Louisiana is challenging the state’s approval of air permits for a proposed new plastics manufacturing facility in St. James Parish. (See RISE St. James v. La. Dept. of Envtl. Quality, No. C-694029-27 (19th Jud. Dist. Ct., filed Feb. 14, 2020)).

This case is part of a stated broader NGO objective to stop new plastics manufacturing in the U.S. The permit challenge here is largely premised on environmental justice and climate change concerns.

In another recently resolved case, an NGO sued the EPA for approving Hawaii’s CWA list of impaired waters when the list did not include waters from which plaintiffs had collected plastic materials. The EPA reversed its approval and sent the matter back to Hawaii, and later overrode Hawaii and listed two waters as impaired for plastics.

Agency Reaction and Rollout of More Stringent Standards

These lawsuits have consequences beyond the immediate defendant and outcome in each case. Industries involved in manufacturing or managing plastics should be aware of these potential impacts even if they do not operate in Texas, South Carolina, Louisiana, or Hawaii.

Here’s why. In Texas, over 155 dischargers holding CWA permits, and industries covered by the general storm water permit, are facing enforcement on the basis that plastics now have a “zero discharge” limit. Permits are being re-written to make this explicit.

This will force new technologies and capital improvements in some cases, and at a minimum, new “best management practices” that will universally apply under the state’s current proposal. These results are easily transferable to any state with a similar CWA permit narrative standard applicable to plastics.

The RCRA claim, if successful in South Carolina, will open up a wide door for NGOs to walk through with potentially significant injunctive relief. The environmental justice and climate issues at the heart of the Louisiana case are already live issues across the country. And the CWA process at issue in the Hawaii case is one that is required every three years in all states.

What Can and Should Regulated Industry Do?

The best way to avoid a citizen suit is to not draw that negative attention in the first instance. This means examining current operations to take steps to reduce and prevent plastics from entering the environment where practicable and to the extent required by applicable law.

Sophisticated companies are watching these developments and planning for current and future compliance as permit terms and regulatory interpretations evolve. Voluntary best management practices, even if they increase costs (and sometimes they can actually save money or create efficiencies), are far more palatable than forced improvements and expenditures.

Also, careful communication principles apply in this arena. Make sure your teams are well-versed in how mandatory reports, permit applications, and the like should be built to support the company’s objectives. Know your neighbors and community, and have a plan for engagement. And, if you receive notice of a citizen’s suit, consider a proactive approach both with the NGO and your regulator.