Plastics Litigation Tracker

Allegations: Plaintiff, Natural Resources Defense Council (NRDC), brought an action against the Environmental Protection Agency (EPA) and under the Administrative Procedure Act, seeking to challenge EPA's approval of a total maximum daily load (TMDL) for trash pollution promulgated by the District of Columbia and Maryland as required by the Clean Water Act. Filed 9/19/2016. See complaint here.

Outcome: Closed. On March 3, 2018, the court granted Plaintiff's motion for summary judgment, holding that the TMDL was improper because it focused on removing trash that was already in the river, rather than on imposing controls to prevent trash from polluting the river in the first place. However, the court gave EPA discretion to establish a TMDL for trash in the river. On January 27, 2020, after EPA had failed to establish a TMDL, NRDC moved for the court to impose a final deadline for EPA’s compliance. In response, EPA filed a motion for a protective order against discovery. On June 2, 2020, the court denied EPA’s motion for a protective order. The Court ordered EPA to submit a reply to Plaintiff's motion by August 14, 2020. EPA requested for an extension and it was granted by the Court, giving EPA until August 31, 2020 to submit a response. On September 21, 2020, the court issued an order denying NRDC's request for a final compliance deadline, but required EPA to submit detailed status reports every three months. The case was closed on August 13, 2021. Since the ruling EPA has been working to develop an updated TMDL and status reports are sent to the Judge twice a year. EPA provides an overview of TMDLs which can be found here.

Allegations: Plaintiff, a trade association, brought an action against the City of Coral Gables, Florida, seeking a declaration that the city's Polystyrene Ordinance, which banned the sale or use of polystyrene containers by city vendors or contractors, was invalid. Plaintiff argued that the ordinance was preempted by three separate state statutes: Section 403.708(9), which prohibits local governments from exerting control over the packaging of products that are manufactured or sold in the state; Section 403.7033, which prohibits local governments from establishing rules that regulate the use of auxiliary containers that customers may use to carry products purchased from retailers; and Section 500.90, which prohibits the Department of Agriculture from regulating the use and sale of polystyrene products in the state. Filed on 07/18/16. See complaint here.

Outcome: Closed. On April 8, 2020 the trial court ruled in favor of Defendant. Plaintiff appealed. On appeal, the circuit court reversed and remanded for entry of final judgment in favor of the Plaintiff, holding that the city's Polystyrene Ordinance was preempted by the Florida statutes, and thus was unconstitutional, null, and void.

Allegations: Plaintiff, a restaurant association, brought an action against the City of San Diego, California, seeking a writ of mandate directing the city to set aside an ordinance which banned the distribution of polystyrene foam food containers. Plaintiff also sought a temporary stay and attorney's fees. Plaintiff argued that the ordinance violated the California Environmental Quality Act because it had been adopted without an environmental analysis with respect to potential environmental impacts of the proposed ban. Filed 3/12/2019. See complaint here.

Outcome: Closed. On December 12, 2019, the parties reached a settlement agreement, whereby San Diego agreed to stay enforcement of the ordinance while it prepares an environmental impact report. In January 2022, the city of San Diego announced it was reconsidering the polystyrene foam ban. Effective April 1, 2023, San Diego passed an ordinance prohibiting most polystyrene foam products from being sold or distributed in the city. More than 130 cities in California have passed similar ordinances banning the foam.

Allegations: Plaintiff, a citizen, filed a putative class action against Nestle S.A. seeking damages, disgorgement of Defendant's revenues, and injunctive relief enjoining Defendant from unlawful marketing practices. Plaintiff also asked the court to order Defendant to engage in a corrective advertising campaign. Plaintiff argued that Defendant's practice of marketing of bottled water as "pure" or "purified" when it contained plastics and microplastics violated the Magnuson Moss Warranty Act, California's Consumer Legal Remedies Act, California's unfair competition law, and California's false advertising law. Plaintiff also argued that the marketing materials constituted breach of express warranty, fraud, and negligent misrepresentation. Filed 4/12/2018. See complaint here.

Outcome: Closed. On January 3, 2019, the court granted Defendant's motion to dismiss, reasoning that Plaintiff had failed to provide sufficient evidence to support her claims.

Allegations: Petitioner, an industry association, brought an Article 78 action against the City of New York and Kathryn Garcia in her capacity as Commissioner of the NYC Department of Sanitation, seeking to vacate and annul the Commissioner's 2017 determination that single-serve food-service expanded polystyrene (EPS) or soft foam cannot be recycled in an environmentally effective of economically feasible manner. Petitioner claimed that the Commissioner's decision was arbitrary and capricious. Filed 4/28/2015.

Outcome: Closed, On June 5, 2018, the court dismissed the petition, finding that the Commissioner, in her decision, had addressed the material aspects of the petition with a painstakingly studied decision that was in no way rendered arbitrarily or capriciously. The petition was filed with Article 78, using the Commissioner of DSNY findings that food service EPS could not be recycled. See here the court order which included the petition. Also, as of January 1, 2019, New York City stores, food service establishments, and mobile food commissaries may no longer offer, sell or possess single-use foam food containers such as foam takeout clamshells, cups, plates, bowls, trays, and coolers. Additionally, manufacturers, distributors, and stores may no longer sell or offer for sale loose fill foam packaging (packing peanuts) in the city.

Allegations: Plaintiff, a trade association, brought an action against the City of Laredo, Texas, seeking declaratory judgment that an ordinance which banned commercial establishments from using single-use plastic or paper checkout bags was unenforceable. Plaintiffs argued that the ordinance was preempted by the Texas Solid Waste Disposal Act. Filed 9/22/2016.

Outcome: Pending. After the district court entered summary judgment in favor of Defendant, the Texas Court of Appeals for the Fourth District of Texas reversed, see opinion here. Defendant appealed. On petition for review, the Supreme Court of Texas affirmed the appellate court's decision holding that the Solid Waste Disposal Act preempted the ordinance, rendering it invalid. See the opinion here.

Allegations: Plaintiff, an association of plastic bag manufacturers and distributors, brought an action against the City and County of San Francisco, California, seeking a writ of mandate to prevent the implementation and enforcement of a local ordinance regulating the use of plastic checkout bags by large supermarkets and retail pharmacies. Plaintiff argued that the ordinance violated the California Environmental Quality Act (CEQA). Filed 02/29/12.

Outcome: Pending. On June 14, 2012, the Superior Court of California denied Plaintiff's motion for a preliminary injunction and stay of enforcement of the ordinance. Plaintiff appealed. On appeal, the Court of Appeals for the State of California, First Appellate District, affirmed, holding that the ordinance was a police power regulatory action to which the categorical exemptions of CEQA applied. See the opinion here.

Allegations: Plaintiff, an association of plastic bag manufacturers and distributors, brought an action against the County of Marin, California, seeking a writ of mandate to prevent the implementation and enforcement of a local ordinance banning the use of single use carryout bags. Plaintiff argued that the ordinance failed to comply with the California Environmental Quality Act (CEQA), and therefore must be set aside. The county had previously determined the ordinance was categorically exempt from the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) because it was a regulatory action designed to assure the maintenance, restoration, enhancement, or protection of natural resources and the environment Filed 11/29/11.

Outcome: Pending. The Marin County Superior Court denied Petitioner's request for a writ of mandate and declaratory relief. The court found that there was enough evidence supporting Defendant's ordinance and the information provided in their Guidelines sections 15307 and 15308. On appeal, the Court of Appeal of the State of California, First Appellate District, Division Three, affirmed, holding that the ordinance was exempt from the CEQA. See the order here.

Allegations: Plaintiff, an association of plastic bag manufacturers and distributors, brought an action against the City of Manhattan Beach, California, seeking a writ of mandate to terminate the IWMA Ordinance No. 2012-1 "An Ordinance Establishing A Waste Reduction And Reuse Program For Carryout Bags.” Plaintiff stated that the County failed to conduct an Environmental Impact Report (EIR) before approving the ordinance. Plaintiff challenged the ordinance banning the use of single-use plastic bags alleging that it violated the California Environmental Quality Act (CEQA). Filed 1/30/2012. See complaint here.

Outcome: Closed, On October 1, 2012, the court denied the petition. It found that Plaintiff failed to submit evidence, as required by the California Environmental Quality Act, showing that the ordinance might cause environmental harm. The court also found that because of Plaintiff's failure, the California Waste Management Authority's decision to not prepare an Environmental Impact Report was justified.

Allegations: Plaintiff, an association of plastic bag manufacturers and distributors, brought an action against the City of Long Beach, California, challenging a city ordinance prohibiting stores from providing plastic carry-out bags to consumers. Filed 6/9/2011. See petition here.

Outcome: Closed. On June 9, 2011, the parties agreed to settle, and the case was dismissed with prejudice. As part of the settlement, the city signed a resolution adopting the Los Angeles County Board of Supervisor's Environmental Impact Report (EIR) and Statement of Overriding Considerations as part of its environmental review process, and retracting and cancelling any part of the addendum that was inconsistent with the EIR.