Marine Plastic Pollution: How Global Extended Producer Responsibility Can Help

50 ELR 10976 ENVIRONMENTAL LAW REPORTER 12-2020COMMENTby Erin Eastwood, Justin Fisch, Lara McDonough, and Linda SobczynskiMARINE PLASTIC POLLUTION: HOW GLOBAL EXTENDED PRODUCER RESPONSIBILITY CAN HELPErin Eastwood is a marine conservation biologist and Program Director for the National Ocean Protection Coalition. Justin Fisch is an attorney at Morrison & Foerster LLP in San Francisco in the firm’s Environmental and Social Enterprise + Impact Investing groups. Lara McDonough is a third-year law student at Northwestern Pritzker School of Law. Linda Sobczynski is an associate in Farella Braun + Martel’s San Francisco office, whose practice spans a range of matters under California and federal environmental and energy laws.Ocean plastic pollution is a growing challenge that has captured the attention and concern of govern-ments, businesses, and the public alike. As images and videos of ensnared sea turtles, smothered corals, and beached whales with plastic bags filling their guts continue to emerge, the global movement to prevent plastic pollu-tion grows.Nearly nine million tons of plastic waste flow into our oceans each year,1 arriving in many ways—ranging from polluted rivers and waterways2 to the wastewater from our washing machines.3 A recent study has found that without immediate and continuous action, the annual amount of plastic entering the ocean could triple by 2040.4 Once in the ocean, this pervasive plastic pollution is nearly impos-sible to clean up. Plastic can now be found in almost every marine habitat on earth—from Arctic sea ice to the deep-est ocean trenches5—and nearly 700 species have been documented to either ingest plastic or become entangled in it.6 We are only just understanding the impacts of plastic 1. Jenna R. Jambeck et al., Plastic Waste Inputs From Land Into the Ocean, 347 Science 768, 768-71 (2015), available at https://science.sciencemag.org/content/347/6223/768.2. Christian Schmidt et al., Export of Plastic Debris by Rivers Into the Sea, 51 Env’t. Sci. & Tech. 12246, 12246-53 (2017), available at https://pubs.acs.org/doi/abs/10.1021/acs.est.7b02368.3. Niko L. Hartline et al., Microfiber Masses Recovered From Conventional Ma-chine Washing of New or Aged Garments, 50 Env’t. Sci. & Tech. 11532, 11532-38 (2016), available at https://pubs.acs.org/doi/10.1021/acs.est.6b03045.4. Winnie W.Y. Lau et al., Evaluating Scenarios Toward Zero Plastic Pollu-tion, 369 Science 1455, 1455-61 (2020), available at https://science.sci-encemag.org/content/369/6510/1455.5. Amy Lusher, Microplastics in the Marine Environment: Distribution, Interac-tions, and Effects, in Marine Anthropogenic Litter 245-307 (Melanie Bergmann et al. eds., Springer 2015), available at https://link.springer.com/chapter/10.1007/978-3-319-16510-3_10; see also David K.A. Barnes et al., Accumulation and Fragmentation of Plastic Debris in Global Environments, 364 Phil. Transactions Royal Soc’y B 1985, 1985-98 (2009), available at http://dx.doi.org/10.1098/rstb.2008.0205.6. Sarah C. Gall & Richard C. Thompson, The Impact of Debris on Marine Life, 92 Marine Pollution Bull. 170, 170-79 (2015), available at http://dx.doi.org/10.1016/j.marpolbul.2014.12.041.ingestion on food webs, and what happens when plastic and the often-toxic chemicals associated with it end up in the bodies or guts of the seafood we eat.If there is anything positive to say about such a broad and complex challenge, it is that there are multiple ways to tackle the problem. In addition to cleaning up plastic pollution, it is possible to prevent “leakage” of plastic waste from waste management systems into the natural envi-ronment; recycling infrastructure can be improved and expanded; product design can be improved so that plas-tic packaging and products can be more readily recovered and recycled; consumption of unnecessary plastic can be reduced wherever possible (especially single-use plastic); and the loop can be “closed,” ensuring that the resources we use to create useful products are captured and recycled through the system indefinitely, in what is commonly called “the circular economy.” These solutions are not with-out their challenges, but they are already serving as a driver for innovation in systems and product design—and they also present an immense opportunity for companies and governments prepared for the change.Legal and policy solutions are increasingly moving away from the piecemeal, product-by-product approach of single-use plastic bans and toward more comprehensive frameworks and solutions. While bans and taxes on plastic products have successfully reduced pollution of those items in some places,7 there is a limit to the political will and public attention required to implement bans and taxes on each product in a piecemeal fashion. Additionally, the need to manage plastic waste sustainably does not only apply to the top 10 most problematic types of products and packag-ing. Rather, policy approaches are needed to ensure that 7. Ocean Conservancy, California Coastal Cleanup Day—Litter Data Summary 2010-2017, https://static1.squarespace.com/static/54d3a62be 4b068e9347ca880/t/5a0237d7652deae895d2df1c/1510094808473/California+Coastal+Cleanup+Data+2010.2016.2017.pdf.Copyright © 2020 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.12-2020 ENVIRONMENTAL LAW REPORTER 50 ELR 10977all plastic products and packaging types are managed in a sustainable and circular manner.This Comment discusses one such approach to man-aging plastic waste in a more comprehensive and holistic manner, called extended producer responsibility (EPR). In this approach, manufacturers of a certain material or prod-uct are made responsible for the treatment, disposal, and recovery of those materials and products. EPR is not a new concept; lawmakers around the world have adopted EPR schemes for many types of waste materials and products. Most recently, this approach is increasingly being applied to plastic and other disposable, single-use products in pur-suit of a circular economy for this sector. Here we present a review of current EPR schemes dealing with plastic and packaging worldwide and in the United States.I. Overview of EPRThe concept of EPR brings manufacturers into the waste management space alongside government- and taxpayer-funded waste recovery and management systems. In so doing, EPR aims to shift the financial and management responsibility of plastic waste from governments and taxpayers and to more equitably share it with produc-ers. While existing U.S. EPR schemes primarily focus on other products like tires, electronics, batteries, mattresses, and pharmaceuticals, there are several plastic- and pack-aging-related EPR proposals under discussion at the U.S. federal and state levels, and several countries around the world have implemented plastic-related EPR schemes in recent years.The designs of EPR schemes in place around the world vary widely and apply to many product categories. Some models involve mandatory regulations, while others are voluntary agreements between governments and the tar-geted industries.8 Whether or not EPR is required by law in a given jurisdiction, there are two main approaches to how systems operate: (1) as collective producer responsibil-ity systems, and (2) as individual producer responsibility systems.9 Most EPR programs are collective, in which a producer responsibility organization (PRO) implements EPR on behalf of a group of producers.10 Collective schemes allow producers to share costs and administrative responsibility.11 In an individual system, each producer must self-enforce its EPR program.12Some examples of EPR programs include take-back programs, where manufacturers collect used products from consumers for free, and container deposits/bottle bills, where consumers pay small fees when they purchase 8. Emma Watkins et al., Institute for European Environmental Policy, EPR in the EU Plastics Strategy and the Circular Economy: A Fo-cus on Plastic Packaging (2017), https://zerowasteeurope.eu/wp-con tent/uploads/2019/11/zero_waste_europe_IEEP_EEB_report_epr_and_plastics.pdf.9. Id.10. European Commission—DG Government, Development of Guid-ance on Extended Producer Responsibility (EPR): Final Report 11, 29 (2014), https://ec.europa.eu/environment/waste/pdf/target_review/Guidance%20on%20EPR%20-%20Final%20Report.pdf.11. Id.12. Id. at 29.beverages and receive refunds when they return the con-tainers.13 Other programs establish waste recovery targets or demand fees to maintain and expand waste manage-ment infrastructure.14II. EPR Programs Outside of the United StatesAs of February 2020, 63 countries have established some type of EPR program, with 30 of these countries imple-menting regulations specifically for plastic products and packaging.15 This list includes all 15 western European Union (EU) countries, several central European countries, and the majority of provinces in Canada, Japan, Korea, and Taiwan.16 Here, we focus on Canada and the EU, where EPR programs have existed since the early 1990s.17A. CanadaCanada has implemented numerous EPR programs at the provincial government level, in collaboration with non-profits and interested stakeholders.18 Most provinces have enacted packaging-focused EPR programs covering plastic items such as bags, cutlery, and straws.19 Each province takes a different approach to how it allocates financial responsibility to the producers.20 For example, in 2019...