It should be taken on faith that legislated clean-up of legacy plastic pollution for some industries is coming. After all, the European Union Single Use Plastics Directive expressly requires that the food and beverage container, packaging and bags producers are responsible for the:
costs of cleaning up litter resulting from those products and the subsequent transport and treatment of that litter
through extended producer liability laws in each member state.
In other words, the makers and users of plastics are in both the waste management and pollution clean-up business. After a moment of shock and awe, it’s worth first considering, dispassionately, what the effects of a legislated clean-up will have upon those named.
Legislative Industry Obligations as Risk Mitigation?
Leaving aside questions as to which parties are captured as “producers”, the broader issue is what impact legislating plastics clean-up will have for stakeholders. It’s worth noting that the EU Single Use Plastics Directive is silent upon what protections, if any, the discharge of these legacy clean up duties will have upon the overall liability of industry.
Under this regime, it would seem that claims against regulated producers to compel plastic pollution remediation is likely mitigated, if not supplanted, by legislative measures. For the most part, any successful claims would likely seek to compel better and faster clean-up, but would be channeled through the auspices of a legislated program for which costs are shared across producer industries. Industry would then anticipate and manage costs socialized across all producers and would likely be passed on to consumers through price premiums.
Plastic Polluters in all but Legislated Name
Under these legislated clean-up initiatives, somewhat arbitrary lines will be drawn as to who is obligated. Much jostling will no doubt take place in these determinations, and each country or region may well view this differently.
But avoiding inclusion in legislated clean-up may not be a bullet dodged. If unfavourable comparisons are drawn with the “producers”, excluded parties may face civil claims for similar outcomes and such liabilities may not been as manageable and predictable as the shared liabilities under the legislative schemes. Further, the claims may go against “deep pockets” parties only, creating competitive disadvantages and/or uncertainties for those on the outside looking in.
Legacy Civil Harm Claims Against Legislated Parties
But do plastics makes and/or users really want to be legislatively-mandated to engage in plastics pollution clean-up? When we consider the possibility of civil legacy harm liabilities, the considerations of many producers might well flip.
In other words, the protective cocoon of an industry-wide obligation might also mean a deemed legislative recognition of the responsible parties. Civil claims could then move beyond the causal link to the contamination, which would be taken as proven, to only a question of damages. The battle would likely already be lost.
So Who Would Be the Producer?
Under a regime like the EU Plastics Strategy, any of the following parties could be caught:
- resin makers;
- plastic product makers;
- brand owners of plastic products; and
- parties placing those products “on the market”.
Further, an industry clean-up obligation could impose either a joint and several liability obligation or, as is common in product stewardship, a “waterfall” with the brands as presumptive responsible parties. It remains to be seen.
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There will be some ferocious political and legal battles to come as to who is liable, under legislation and civilly, and to what extent. For now, it is enough to say that producer engagement in these issues is likely essential in defining how these obligations will be discharged.
