After suing Exxon for plastics deception, California AG Bonta says the 'investigation continues' into other companies
In a one-on-one interview with Landmark, California's top lawyer said other states are interested in plastics lawsuits, too.
Last week, California filed a landmark lawsuit against ExxonMobil, accusing the company of exacerbating the plastics crisis through a decades-long effort to promote recycling – despite knowing that recycling largely doesn’t work.
The lawsuit is the most ambitious of its kind and is the first to name a fossil fuel company as a defendant for its role in the plastics crisis. It claims that the company, which produces synthetic polymers that are used to make single-use plastic containers, had broken state unfair marketing laws and created a public nuisance.
Landmark spoke with California Attorney General Rob Bonta in an exclusive interview about his new case, the importance of plastics to the industry he just started a war with and what he sees coming next. Below is a transcript of that interview, lightly edited for clarity and length.
(This interview is part of a series of stories on plastics litigation by Landmark. If you haven’t yet seen them, take a look at our story about the First Amendment implications of this new California lawsuit, and our story about how these lawsuits can change the way Americans think about their empty bottles and wrappers.)
Landmark: Mr. Attorney General, thanks for doing this. First of all, I'm hoping you can talk about how you came across this issue and what about the plastic crisis felt urgent enough to put your time and the heft of the California Justice Department behind?
Bonta: Plastic waste is all around us. It’s in our rivers, our streams, our oceans. It's strangling our wildlife, it's blighting our environment. It’s in the water that we drink, the food that we eat, the air that we breathe and in our bodies. From the perspective of a Californian with a vision for a sustainable future and a clean environment, plastics is a challenge that you can't deny and you can’t not see. And it's another challenge among others in the climate crisis and the ongoing effort for good environmental stewardship.
It's a challenge shared by Californians. It's a challenge to the extent that we pay $1 billion a year cleaning up plastic waste and we wanted to get to the bottom of it.
Landmark: So the point of Landmark is to democratize, demystify and explain the world of environmental law. So I'm wondering if you can talk about what the heart of your complaint is in terms of the legal claims you’re bringing and tell us if there are any analogues out there that you were looking toward when crafting the lawsuit.
Bonta: There’s sort of two buckets of core legal claims in our case against ExxonMobil for perpetuating the myth of recycling that has led to the global plastics crisis. One is a public nuisance claim. The second bucket includes multiple claims but they all rest on the same premise of deception and lies.
For the public nuisance claim, they can be brought when there's harm to the health of the community caused by an entity. The entity can be sued and they can be required to abate the problem by funding an abatement fund. This is a tried and true approach to address other issues in other industries that have harmed large numbers of the public. Tobacco is an example that people understand that we can point to. It’s the same with opioids and lead paint. They are all industries where public nuisance claims were brought and justice was secured in terms of payments and accountability, and of programs to abate the problems they caused.
So this is not a novel theory. It's a tried and true one that has been used in many more cases. It's also the foundation for a case we've already built against the fossil fuel industry for climate change deception.
So that’s sort of the public nuisance claim and then the deception and the lies set of claims are based on California law. We have a false advertising law where you can't falsely advertise. We have a law that prohibits entities from engaging in misleading environmental marketing as well as unfair competition which could be deceptive or unfair or unlawful conduct. When there are misrepresentations by businesses, we have sued them in the past regularly for lying. You have to be truthful in your representations to your potential consumers and the public. So those are also sort of straightforward laws that require businesses to tell the truth and not to lie.
And here ExxonMobil has engaged in a decades-long campaign of deception in which they told the public that recycling plastic, including single use plastic, is sustainable when they knew better. They knew that only 5% of plastic waste in the United States is ever recycled, 95% goes to landfills or is incinerated or goes into our environment, our oceans, beaches, streams, rivers.
They knew that and they lied. And that is the core conduct at issue here and both claims rest on that conduct.
(In a statement, an ExxonMobil spokesperson has shifted the blame, claiming California officials knew for decades that the state’s recycling system wasn’t effective and “failed to act, and now they seek to blame others.”
They continued: “Instead of suing us, they could have worked with us to fix the problem and keep plastic out of landfills. The first step would be to acknowledge what their counterparts across the U.S. know: advanced recycling works. To date, we’ve processed more than 60 million pounds of plastic waste into usable raw materials, keeping it out of landfills. We’re bringing real solutions, recycling plastic waste that couldn't be recycled by traditional methods.”)
Landmark: So your complaint makes it very clear that plastic production is a big growth area for ExxonMobil. I'm wondering if you can talk about this lawsuit in the context of the energy transition a little bit. If this deception as you're calling it is enabling the continued use of crude oil as a lifeline for this industry.
Bonta: Yeah, plastic is a fossil fuel derivative. And ExxonMobil is an oil and gas company and it is a petrochemical company that produces plastics – it’s both. And if they see declining use of oil and gas, they might decide to invest in more plastic production as a way to use their fossil fuel.
And that’s what they're doing. They are seeing a decline in fossil fuel gas usage and they are bullish on the plastic market. They're betting their future on growth in the plastics industry.
And that’s an aside, that just happens to be a fact. We brought the climate change deception case based on behavior dating back to the ‘60s and the plastics deception case for behavior dating back to the ‘70s.
They’re going to decide what they do with their own business, and our job is to look at that conduct and apply the law and hold them accountable when they break the law, and that’s what we’ve done in both cases.
Landmark: A lot of people are expecting ExxonMobil, as they have previously in similar cases, to raise a First Amendment defense here. I'm curious if you expect that defense, and if so what your response would be?
The law is very clear that you can’t lie. You can’t deceive. You can’t misrepresent. You can’t falsely advertise. You can’t mislead the market. So the First Amendment - the law has defined what it means in different contexts and what it doesn’t.
In the business context, the marketing context, the advertising context, the misrepresentation by consumers context, it prevents you from doing what ExxonMobil has done for decades.
You can’t knowingly lie. [ExxonMobil determined, according to internal documents] that recycling is not technically or financially feasible … and then decided that would be bad for business. And then they perpetuated the exact opposite: A lie that recycling actually is sustainable so that consumers felt comfortable that they were fulfilling their responsibility and being good environmental stewards when they take the item with chasing arrows that they got from the store and put it in the blue bin. [The consumers] now think that will be recycled into another product and reused by another American family when the truth is that 95% of the time it won’t, and Exxon knew that.
So their First Amendment claims are going to fall flat because these are clear known lies and the law prevents you from engaging in that sort of conduct.
Landmark: And what is your response to the general argument that plastics are ubiquitous and people are choosing to buy them in their day-to-day life – so that’s where the responsibility lies?
Plastics really are ubiquitous. They are certainly used by millions of Americans and Californians. And it makes life more convenient and people like those plastic products.
By the way, that's by design. The whole idea of recycling plastics with a single-use life is people could use it as they want. It makes their life easier, more convenient. And it’s good for the environment to do so because that’s what the chasing arrows say - you put it in the blue bin and it gets recycled.
So that has led to enormous profits, including $36 billion last year. But what should happen is ExxonMobil should be prohibited from lying, prohibited by the law from misrepresenting in advertising and misleading. And, they should be forced to tell the truth.
And then consumers will decide what they want to do from there. If they now know that 5% of the plastic that they use is actually recycled they might do a number of things. They might say, “good to know I'm going to use the exact same amount of plastic product that I used to use.’” They might say, “that's shocking to hear, I always thought those items were all being recycled. So I'm going to use less.” Or, “I’m not going to use any.” Or, “I’m going to use non-plastic products.” But the foundation of what consumers deserve is truth, and then they should be able to decide from there.
Landmark: Great. So, I think there's an element of environmental justice in your lawsuit, right? You talked about Exxon’s Baytown, Texas, plant – there's a bunch of petrochemical development down in the Gulf Coast. Beyond Exxon, there are of course plastic facilities run by Shell in places like Western Pennsylvania. The through line there is, I think, poor, working class, often minority communities in the shadow of these facilities. I'm curious what you think of the importance of this type of lawsuit in addressing injustices for those communities.
Bonta: There's definitely a strong through line of environmental justice in our lawsuit. There's a strong through line of environmental justice in all of our environmental work and all of the climate action in our office. We think it's part and parcel, baked into and integrated into all of our work.
And you're absolutely right to highlight the fact that petrochemical plants are often in areas where there are communities that live at the intersection of poverty and pollution. Who are under-resourced and overburdened. And who are being forced to endure toxins and pollution that harm their bodies, harm their health, harm their futures.
And so that that definitely exists here.
Landmark: Why did you only sue Exxon and not other fossil fuel companies like Shell that are also involved in plastics manufacturing?
Bonta: We thought it was really important to start with ExxonMobil. They’re the largest petrochemical company in the world. They produce the most polymers, or plastic pellets, that become the building blocks for the plastic items we see in our daily lives. And they were also one of the biggest liars. So, it was important to start with them. Our investigation focused on them and their ecosystem and so we brought our lawsuit against them.
But the investigation continues. You are right, ExxonMobil is not the only petrochemical company in the world, not the only manufacturer of those polymers, those building blocks used in products. Our investigation continues and will continue and we will take appropriate action based on what our investigation reveals.
Landmark: Your lawsuit is the most ambitious to be filed related to plastics, but it's not the first. Last year, New York Attorney General Letitia James sued Pepsi. Baltimore filed a plastics suit earlier this year. We've had many cases brought by environmentalists or consumers as well.
Yours is the first to focus on the production side of things, though. Why is that important as opposed to sales by a company like Pepsi that directly go into the hands of consumers.
Bonta: We wanted to go to the source here. The producers of those polymers that drew. Painting and and molding and addition of chemicals becomes the products in our daily lives with those important to focus on them.
We also know through our research in this case that ExxonMobil’s advanced recycling is not advanced, or recycling. It only recycles 8% of plastic that goes through that process. They have those items certified as “circular” and then they sell them at a premium to their customers and their customers are under the misguided conclusion that these really are recycled products when they're not. And they’re paying a premium for them.
So, we thought it was important to focus on the source.
This is a groundbreaking case in my humble opinion. It's the first time a public entity has sued a petrochemical company for its role in the plastics pollution crisis. And it’s not just any public entity. Again, humbly speaking, this is California with a legacy and a history and a story of bold climate action – of moving first, moving strongest, moving aggressively and at times inspiring others to do the same.
And being both a source of inspiration and a blueprint for what's possible so that others can follow.
Landmark: Do you expect more of these lawsuits from other attorneys general going forward?
Bonta: We're the first, but, candidly, I hope we won't be the last. I hope others will join us. I hope other states will look at their own laws, and the facts in their own state. The impact of petrochemical companies like ExxonMobil and others. And really take a close, deliberate, intentional look to see if they have a case as well. And my guess is that many of them will. Local governments as well.
ExxonMobil is a multinational, global company that used the same myth of recycling throughout the world and throughout the nation. So I believe that there well could be other cases that could be brought.
I've already heard early indications from other states that they're looking. That they are reading our complaint and they are trying to see if it applies in their state as well. I think that is a good thing – more is more, and more is better. And more entities actively holding powerful interests that abuse their power to break the law accountable for exacerbating our global plastics pollution crisis, it is a good thing.
Many, many people have a role to play. With this specific action we are unique and are first. But I think others have a role to play and perhaps they will.