Three hundred million tons of plastics are produced each year worldwide. Less than 10% of plastic waste in the United States is recycled each year. With projections showing that plastics production is expected to triple over the next 40 years, public concern over plastics pollution is coming to a head.
For example, in 2020, a coalition of more than 500 community and conservation organizations released a “Presidential Plastics Action Plan” urging the Biden administration to pass federal legislation banning the use of single-use plastics and to limit plastic production.
Two legislative solutions to combat plastic pollution have emerged: (1) encouraging “advanced recycling,” a process that strips plastics down to their chemical form for reuse; and (2) limiting and reducing plastics consumption. While backers of advanced recycling argue that it is the way of the future, environmental groups argue the practice fails to address the true scope of plastic pollution and will contribute to hazardous emissions. To date, neither solution has gained traction at the national level. At the state and local level, however, regulation involving both methods is increasingly taking shape.
In the last five years, 20 states—primarily red states—have passed laws aimed at encouraging advanced recycling.[1] Many of these laws achieve this goal through similar mechanisms, including the following.
More states are expected to consider bills to promote advanced recycling in future legislative sessions.
A wave of single-use plastic bans—primarily in blue states—is sweeping the country. These bans most often prohibit plastic bags, straws, stirrers, foam cups, and takeout clamshells. Currently, eight states have banned single-use plastic bags and many others have plastic bag bans in process. Local governments are also enacting bans. For example, Malibu, Berkeley, Seattle, Charleston, and Miami Beach have banned plastic straws and more than a hundred municipalities and cities have banned expanded polystyrene (commonly referred to as “Styrofoam” and used in food containers), including Los Angeles, New York City, Seattle, Miami Beach, and San Diego.
California is the first state to pass sweeping legislation encompassing both reduction of plastics and plastics recycling. With respect to plastics reduction, the law requires a 25% drop in single-use plastic by 2032 and a reduction in the use of expanded polystyrene by 25% by 2023. With respect to recycling, the law requires that at least 30% of plastic items sold or bought in California be recyclable by 2028. These targets for expanded polystyrene are even more aggressive, increasing periodically. If producers are unable to meet the reduction rates, the material will be banned entirely. Finally, by 2032, 65% of all plastic items sold or distributed in California must be recyclable. Any entity that fails to comply with the new law could face fines of up to $50,000 a day.
California’s legislation also includes new ideas that have not been tested in many other jurisdictions, such as (1) establishing a plastic pollution mitigation fund; (2) creating a producer responsibility organization, composed of industry representatives, to run a recycling program overseen by the state; (3) and allocating $500 million a year to a new plastic pollution mitigation fund dedicated to evaluating the environmental and health impacts of plastics.
In another example, last year, New Jersey passed a bill establishing recycled content requirements for certain plastic, glass, and paper packaging and banning polystyrene packing peanuts. The passage of this bill, aimed at stimulating demand for recycled materials while also reducing pollution, signifies a shift in how the recycling system in New Jersey and the broader region will need to operate to better prioritize recycled material in the coming years. The bill’s recycled content standards will take effect in 2024, although manufacturers will be allowed to apply for a waiver if they can prove they will not be able to achieve the recycled content requirements under certain conditions.
To help spur the market, the bill directs the New Jersey Department of Environmental Protection (DEP) to establish incentives for manufacturers, recyclers, and retailers to collect and reuse polyethylene film. The DEP also has the authority to review and update any of the recycled content requirements based on factors like changes in market conditions, availability of recycled material, or recycling infrastructure capacity.
In addition to the types of solutions outlined above, technical and social solutions to the plastics problem are rapidly developing, including through innovation, product design, and environmentally friendly alternatives. The regulatory landscape will quickly evolve to keep up. Morgan Lewis is continuing to monitor ongoing developments.
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[1] These states include Arizona, Arkansas, Florida, Georgia, Illinois, Iowa, Kentucky, Louisiana, Mississippi, Missouri, New Hampshire, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, West Virginia, and Wisconsin