Category: Environmental Law
Plastics are commonplace in modern society, despite increasing awareness of their negative environmental impacts. It is evident that plastic pollution litters our oceans and greenery, with devastating effects on natural ecosystems. Yet, the poor disposal of plastics is only part of the story—the production and management of plastics are incredible climate change contributors. Governmental action, however, has primarily focused on regulating the consumer and mitigating the impacts of plastics after use. Given the increasing urgency of climate change, it is time for the government to take the harm of plastics more seriously and regulate its production as the serious climate contributor it is.
The Plastic Problem
Every year, between five hundred billion and one trillion plastic bags are used worldwide. (Jennie Reilly Romer, Comment: The Evolution of San Francisco’s Plastic-Bag Ban, 1 Golden Gate Univ. Envtl. L. J. 439, 439 (2007).) The average lifespan of a plastic bag is only twelve minutes. (Travis P. Wagner, Reducing single-use plastic shopping bags in the USA, Waste Management 70, 3, 4 (Sept. 2017).) This short lifecycle comes from a mix of user apathy and the fact that recycling plastics costs more than creating new plastics. (CIEL Report).
Thus, the plastic or fossil fuel industry continues to produce new plastic, adding to greenhouse gas emissions with each item produced. “At current levels, greenhouse gas emissions from the plastic lifecycle threaten the ability of the global community to keep global temperature rise below 1.5°C degrees. By 2050, the greenhouse gas emissions from plastic could reach over 56 gigatons—10-13 percent of the entire remaining carbon budget.” (CIEL Report at 1.)
The Plastic Lifecycle
There are numerous reasons that plastics are considered to be major climate contributors. First, the substances used to make plastic, like ethylene and propylene, are derived from oil, gas, and coal, which must be extracted from the ground. (CIEL Report, at 21.) The combustion of these fuels and conversion of the petrochemicals each directly emit greenhouse gasses. (CIEL Report, at 44.)
Next, plastic production contributes indirectly to greenhouse gas emissions because the refining and manufacturing machines are powered by fossil fuels. (Id.). Currently, plastic production accounts for four to eight percent of global oil consumption every year and is projected to increase to about twenty percent by the year 2050. (CIEL Report, at 24). Studies have shown that for some plastics, the production process contributes up to sixty-three percent of the emissions in the plastic lifecycle. (Spyros Foteinis, How small daily choices play a huge role in climate change: The disposable paper cup environmental bane, 255 J. of Cleaner Production 1, 5 (Jan. 27, 2020)).
Further, some studies have attributed 37% of greenhouse gas emissions from plastics to management, or disposal processes. (Id.). Most plastic waste is put in a landfill. (CIEL Report, at 6). This is again because the cost of managing waste can often exceed the value of the materials that would be recovered from the recycling. (Wagner, at 5.) Additionally, plastic can only be “downcycled,” so single-use plastic can be of too poor quality to recycle. (Romer, at 446). As of 2017, only nine percent of all plastic discarded since 1950 has been recycled, and twelve percent incinerated. (CIEL Report, at 55).
Finally, some plastic is simply not managed. A portion of plastic is therefore just pollution. Such plastic often ends up in oceans and waterways, where it degrades slowly, releasing greenhouse gases and interfering with carbon sequestration. (Id.).
Most current regulation deals with pollutant plastic, or plastic which has been used and discarded, causing obvious environmental blight. Some cities and states have attempted to reduce plastic consumption by regulating the use of plastic bags. (Muhammad S. Khan et. al., Consumer green behaviour: An approach towards environmental sustainability, 28 Sustainable Development 5, 1019, 1168 (Oct. 8, 2020).). Local governments have also attempted to require the industry to invest in MSW management—thirty-three states have enacted extended producer responsibility (“EPR”) laws, which require producers to internalize some of the end-of-life costs of their products. (Wagner, at 3). Finally, localities often used unit-based pricing when picking up trash—but allow free recycling to incentivize residents to sort their own waste. (Id.).
However, these regulations generally focus only on regulating consumers rather than the plastics industry. Plastic bans incentivize a reduction in use, but only for a selection of plastics, at cost of the individual user. EPRs do regulate the plastic industry, but mainly forces the companies to internalize the economic cost, since the climate damage has already occurred by the time of disposal. Further, providing free recycling focuses solely on the consumer and does little to reduce the environmental cost given the lack of recycling that actually occurs and by again by focusing on only the end-of-life processes, after much of the climate damage has occurred.
It is therefore time for the government to take the greenhouse gas emissions over the plastic lifecycle more seriously, and work to reduce the production of plastics by directly regulating the plastics and fossil fuel industries—because they are the same thing.
Recommendations for the Future
The ideal environmental solution would be to reduce plastic manufacturing by setting limits on production; banning single-use plastic production and use; and stopping new oil, gas, and petrochemical infrastructure. (CIEL Report, at 82-83). Higher taxation on production could additionally achieve these reduction goals and incentivize the recycling of existing plastics. The federal and state governments could also adopt more stringent greenhouse gas emission targets and rigorously enforce them, including plastics in their calculations of emissions. (Id.)
Any of these solutions will be a political battle, however. The regulation of plastic has historically been impeded by the fossil fuel industry, which makes over four hundred billion dollars a year making plastic. Years of misinformation and court challenges by the fossil fuel industry have led to politicians shying away from plastics regulation. (See Jennie R. Romer & Shanna Foley, A Wolf in Sheep’s Clothing: The Plastics Industry’s “Public Interest” Role in Legislation and Litigation of Plastic Bag Laws in California, 5 Golden Gate University Environmental Law J. 377, 381 (2012).).
Perhaps, then, the first step is simply to acknowledge the climate impact of plastics and increase public support of greater regulation to provide the political incentive. The lack of attention to this issue is evidenced by the fact that Biden’s “Executive Order on Tackling the Climate Crisis at Home and Abroad” does not even include the word plastic. This is an unacceptable reality if we ever hope to truly make climate progress. It is time for the government to take plastic regulation more seriously—we simply cannot afford not to.
In July of 2020, California passed the historic Clean Trucking Rule, the first of its kind in the world. The rule requires manufacturers to sell increasing percentages of zero-emission trucks in the state. While many have applauded the action, the Trump administration was not a fan of the rule. California and the Trump administration have been at odds for years, as California has attempted to make up for the lack of climate action at the federal level. Over just four years, President Trump’s administration reversed over 100 environmental rules and regulations. To make up for the loss, California has passed numerous regulations and initiated at least twenty-four lawsuits to halt the Environmental Protection Agency’s (“EPA”) rollbacks. California, given its unique legal status on environmental issues, has proven itself to be a clear leader on climate action and emission reduction.
The Clean Air Act
When it comes to the climate, California is not restricted by Constitutional provisions such as the Commerce and Preemption Causes. The Clean Air Act (“CAA”), first passed in 1970, gives the federal government the ability to regulate pollutants that are emitted into the ambient air and prohibits states from adopting or attempting to enforce any of their own motor vehicle emission controls. However, section 209(b) of the CAA allows states that had adopted standards prior to 1966 could apply for a waiver to that prohibition; and only California qualified. California was the first state to attempt controlling auto pollution and needed the ability to adopt more stringent controls to address the state’s extreme smog problem. To set new motor vehicle emissions standards, California must apply for a waiver from the EPA. The EPA administrator shall grant the waiver unless the standard is (1) arbitrary and capricious, (2)is not needed for compelling and extraordinary conditions, or (3) is not consistent with the CAA. Since 1970, administrators have consistently granted California its waivers. One exception was a waiver for new emissions restrictions on vehicles starting in 2009 that was initially denied in 2008, but President Obama later reversed the denial. This waiver program has created numerous California programs that differ from federal standards, including the Zero Emissions Vehicles (“ZEV”) Program, The Advanced Clean Cars program, and Low Emission Vehicles (“LEV”) Standards.
Under section 177 of the CAA, other states can choose to adopt either the current federal regulations or the California regulations if that will help the state achieve the CAA requirements more efficiently. As of August 2019, fourteen states have adopted portions of California’s ZEV and LEV programs.
California’s New Rule
The California Air Resources Board (“CARB”) established the Advanced Clean Truck Program. The program requires that
beginning in 2024 manufacturers sell zero-emission trucks— that is electric and fuel cell powered trucks—as an increasing percentage of their annual California sales. Zero emission trucks need to make up 55% of Class 2b – 3 truck sales, 75% of class 4 – 8 straight truck sales, and 40% of truck tractor sales by 2035. Massachusetts and seven other states have pledged to follow California’s lead for medium and heavy duty trucks. Additionally, fifteen states and Washington D.C. have signed a memorandum of understanding pledging to each develop an action plan to support widespread electrification of medium and heavy duty vehicles.
With these monumental steps forward, the federal government started to push back. The Trump EPA and National Highway Traffic Safety Administration (“NHTSA”) issued a final rule titled the “One National Rule Program,” which finalized parts of the Safer, Affordable, Fuel-Efficient (“SAFE”) Vehicles Rule that was first proposed in August 2018. The action makes clear that federal law preempts state and local tailpipe greenhouse gas emissions standards as well as ZEV mandates. As soon as President Biden took office, however, he ordered federal agencies to reexamine these changes.
The EPA and California’s Rule
The California rule is set to take effect in 2024, but a waiver must be approved by the EPA beforehand. The EPA has never gone through a denial of a California waiver before, but that has not stopped the Trump Administration from trying to revoke previously granted waivers for zero emission passenger vehicle standards. The EPA is pursuing the revocation of California’s 2013 preemption waiver for greenhouse gas emissions and ZEV programs. This revocation is currently being challenged in court. If former President Trump won the 2020 election, the EPA may have tried to deny California’s zero emission truck regulations waiver. The EPA, however, would have faced an uphill battle because there is clear evidence that reducing emissions is necessary to help California achieve its CAA goals. California’s argument would have been bolstered by the recent wildfires that destroyed large swaths of the state. It was unlikely the EPA could have offered enough solid evidence to uphold their waiver denial. In addition, most legal experts agree that California, and the states that follow their regulations, had a strong case that the Trump Administration’s efforts were unlawful. Still, the changing balance on federal appeals courts and the Supreme Court could undermine California’s waiver process and spell the demise of the original purpose and intent of the CAA. For the time being, however, California and allied states continue to have a valuable tool to fight climate change and reduce emissions across the entire nation regardless of who controls the EPA.
Shifting Baselines are a Double-Edged Sword: Why Climate Advocates Must Honor Our Environmental Laws In Shaping Climate Policy
In his 1970 state of the union address, Richard Nixon said, “we still think of air as free. But clean air is not free, and neither is clean water. The price tag on pollution control is high. Through our years of past carelessness, we incurred a debt to nature, and now that debt is being called. The program I shall propose to Congress will be the most comprehensive and costly program in this field in America’s history.” President Nixon later signed bipartisan legislation establishing Environmental Protection Agency.
EPA efforts implementing laws such as the Clean Air Act and the Clean Water Act have greatly reduced pollution throughout the United States. Enforcement of the CAA has reduced aggregate national emissions of the six common pollutants by 73 percent. At the same time, gross domestic product grew by 324 percent. The CWA has had a rockier implementation – Flint Michigan still doesn’t have clean water – but has nevertheless had a significant impact on reducing water pollution.
Unfortunately, Americans are already forgetting that clean air and clean water is not a guarantee or a constitutional right, due in part to the phenomenon known as shifting baseline syndrome. It suggests that something that was abnormal in the past, becomes the new normal, or baseline, for a generation of individuals, who then collectively forget the past baselines.
First explained in 1995, this cognitive theory has gained traction in the climate community to explain public antipathy towards action on climate change. It suggests that as average temperatures and associated climate effects slowly increase over time, individuals will fail to recognize the danger that the climate crisis poses, and collective action may fail to materialize as a result. Climate activists fear that no specific event will motivate action similar to the environmental crises in the 1970’s, and like a lobster in a pot of boiling water, we won’t realize what is happening until it is too late.
Shifting baselines, however, are not limited to present climate effects, but also work to undermine public support for current environmental laws and regulations that continue to reduce pollution in the present day. In 1995, for example, EPA embarked on an ambitious project to cure 400 years of environmental degradation and make the Charles River swimmable and fishable again, pursuant to its authority under the Clean Water Act. While those goals have not fully been achieved – EPA does not advise swimming on some days, and fishermen can only catch, then release fish – the monumental efforts have reduced source pollution from raw sewage flows and have led to a 99.5% reduction in source contributions to the river.
As a transplant to Boston, I was shocked to learn that the Charles has such a toxic history. And it is possible, if not probable, that an entire generation of Bostonians will grow up taking this privilege for granted. It may even be easy, based upon the unqualified success of the river cleanup, to forget the substantial sacrifices made and costs incurred in restoring the Charles.
This intergenerational failure to maintain understanding of past action in an environmental context may present a barrier to action on climate change. If the public discounts past costs to safeguard our water and air or the costs of maintaining environmental quality, the harder it will be to take new action. The public will not be ready to accept the significant costs required to tackle the climate crisis.
This is why it is imperative for climate advocates to not discount our existing environmental laws, but to actively celebrate their successes. It is incumbent on our present leaders and policymakers to stress how far we have come to clean the environment. They must frankly and openly discuss the means we took to get here. And they must stress that it is in our power to once again make the difficult decision to invest time, energy, and significant sums of money to clean our environment. We are not working from a blank slate in the climate fight.
Unfortunately, it seems that even our legislators pursuing climate action view climate solutions as separate and distinct from the long history of environmental action. For example, the Green New Deal discusses the World War II and New Deal mobilizations but fails to mention the bedrock environmental laws of the 1970s or the decades of subsequent pollution abatement.
We face severe environmental and public health challenges. We are not on track to keep global temperatures below 2 degrees Celsius. Sea level rise threatens our coasts. Ocean acidification will virtually eliminate all coral reefs and their priceless biodiversity and threaten coastal fishing communities’ livelihoods. It may be easy to abhor the cost of action, but we have not only known for fifty years of the cost of a clean, resilient, and sustainable environment, we accepted those sacrifices. It is time to embrace that history, rather than run from it.