How a Baltimore lawsuit against Coke and Pepsi could change the way we think about plastic waste
The lawsuit has attracted veteran law firms with experience suing chemical companies for PFAS, Big Pharma for opioids and Big Oil for climate change.
Like many other major cities on the planet, Baltimore has a litter problem. Plastic bottles, bags and wrappers are everywhere. They plague sidewalks, streets, parks and the historic city’s famed harbor.
If you want to find someone to blame for all that litter, potential culprits abound. Residents blame everything from a dysfunctional local government to rude neighbors. After all, who hasn’t seen someone kick an empty bottle to the curb or crumble a chip bag and miss the trash can?
But a new lawsuit filed by the city of Baltimore in June rejects those theories, placing the blame instead on companies that manufacture or sell plastic products like PepsiCo, Frito Lay, CocaCola and others.
It is among the first government-led lawsuits to target plastics manufacturers or distributors for their part in a global problem the Biden administration recently called a “crisis,” and millions of dollars are on the line. Legal experts say that the lawsuit could not only spur a wave of similar cases across the country but also change the public’s perception of who is responsible for all our trash.
“What this lawsuit does is it changes the narrative a little bit into more of, ‘Someone is responsible for this, so they should be paying to clean it up rather than me spending my Saturday doing it,’” Bethany Davis Noll, the executive director of NYU Law’s State Energy & Environmental Impact Center, told Landmark.
The companies didn’t respond to requests for comment. They have generally said they take the issue of plastic waste seriously, and are working to boost recycling rates.
‘On the threshold of a wave of new litigation’
To be clear, Baltimore isn’t saying Chester the Cheetah is personally dumping his wrappers all over the place. Instead, the city claims the companies — whose products fill gas station and grocery store shelves across the country — have sold single use plastics for decades knowing full well that very little of it will ever be recycled.
In doing so, the city claims the companies were negligent, created a public nuisance and violated a handful of local or state consumer protection laws.
Those are the same sorts of claims that have been used successfully to go after opioids producers, Big Tobacco and even per- and polyfluoroalkyl substances (PFAS) in court. It’s also a similar legal strategy to the burgeoning body of cases filed against major oil companies over climate change deception.
(Note: Baltimore is among the cities that has sued major oil companies seeking damages from climate deception. That was dismissed this month by a state court judge who said global greenhouse gas emissions are beyond the scope of things that state law can address.)
Patrick Boyle, an accountability attorney at the Center for International Environmental Law, told Landmark he believes Baltimore’s new case (alongside one filed by New York Attorney General Letitia James last year) shows the U.S. is “on the threshold of a wave of new litigation.”
That’s in part because the Baltimore lawsuit comes amid increasing scrutiny on plastics producers, he said. And that increased scrutiny comes from the fact that it is impossible to get away from plastics these days: a plastic garbage patch twice the size of Texas is floating in the Pacific, for instance, and microplastics have been found everywhere from men’s testicles to Antarctica.
Boyle, whose organization has written a guide for cities thinking about plastics lawsuits, also said plastics companies have spent big money lobbying against stricter controls on plastics for over 30 years. The results of those campaigns continue to be felt today as the world begins to transition away from fossil fuel energy sources, he said, adding that plastics are a lifeline for oil and gas companies and are set to account for nearly half the growth of oil demand by 2050 (more than trucks, aviation and shipping).
“We will see more state and city attorneys file cases like those in New York and Baltimore,” Boyle told Landmark. “And they should — they are well positioned to be first movers here with their unique investigative powers and mandates to protect and vindicate the public health and environmental interests of their citizens.”
Veteran attorneys from the opioid, climate and PFAS fights take lead in plastics
All told, dozens of lawsuits have been filed over plastics. Many have been filed by consumers or nonprofits against individual companies, alleging the companies have misled consumers with recyclability claims. In addition to New York, California Attorney General Rob Bonta has been signaling for years that he’ll sue over plastics, too.
But Baltimore’s case also shows that private plaintiffs attorneys see plastics litigation as a winner. Baltimore’s government lawyers are getting help from attorneys with the private law firms Smouse & Mason, Milberg Coleman Bryson Phillips Grossman and Napoli Shkolnik.
Milberg is well known for its work on opioid litigation and is behind a lawsuit filed by Puerto Rico municipalities against big oil companies for climate change, using a novel racketeering legal theory.
Napoli Shkolnik has also worked on opioids cases and most recently led a years-long fight against major chemical companies like 3M and DuPont for polluting U.S. water systems and making people sick with PFAS. That litigation last year yielded over $10 billion in settlements with those companies on behalf of water systems, with more claims outstanding.
Paul Napoli, who has led the PFAS litigation, told Landmark his firm has funded research into the plastics problem for at least five years. But they had to wait for the PFAS and opioid work to calm down, because it’ll be a big fight.
“It’s not for the light hearted. The list of defendants and legal issues are extensive,” he said.
Napoli said that he expects more cases to come, but hopes Baltimore will be a good first case through which to establish strong precedents.
“It’s totally going to explode,” he said of the pending storm of plastics cases. “You see articles everywhere on plastics nowaday. It’s everywhere.”