Plastic pollution is a pervasive and growing problem. Plastic products pose significant risks to public health and the environment throughout their lifecycle—from production and consumption to disposal or recycling. In response, the Earth Island Institute, a California-based non-profit environmental group, filed a novel lawsuit in 2020. Earth Island alleges that several major plastic product producers created a public nuisance with their products in California. While Earth Island’s case is still pending, it represents the frontier of using public nuisance law to address mass harms.
Drawing on lessons from public nuisance cases against the opioids industry and fossil fuel producers, this Note comprehensively considers how public nuisance liability for plastic pollution would work in theory and in practice. Two possible framings of today’s “public plastic nuisance” are the negative effects of plastic pollution on (1) public waterways and lands and (2) the public’s access to clean air and water. Both framings are consistent with historical and traditional conceptions of public nuisance law. This Note explains how public nuisance claims based on these framings would be viable in another state facing the widespread effects of plastic pollution: New York.
In the absence of comprehensive regulation of plastic products throughout their lifecycle, public and private litigants both can and should use the “public plastic nuisance” theory. Litigation offers an avenue for holding the plastic industry accountable for pollution related to their products. Moreover, the prospect of public nuisance liability could pressure the plastic industry to change its business practices for the benefit of public health and the environment. Earth Island’s case should therefore provide a roadmap and foundation for future plastics litigation.
