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Welcome to Environmental Law Explored: A Podcast Series
The podcast of the American Bar Association Section of Environment, Energy, and Resources.
Talia Gordner:
Hi everyone, and welcome to the Enforcement and Litigation Committee’s Emerging Contaminants podcast series. This is the podcast episode on microplastics. We're really excited to have you.
My name is Talia Gordner. I'm a partner at McMillan, LLP in Toronto, Canada, and the co-chair of the SEER Enforcement and Litigation Committee. My practice is focused on Canadian environmental law, where I advise and represent clients on regulatory, transactional, and litigation matters.
I'm here with two other speakers I'm very excited to introduce to you.
First, I have Jennifer Novak. Jennifer is a California-based environmental attorney who leads a team of four attorneys on Clean Water Act, Government, CERCLA, and RCRA matters. Over the past 30 years, Jennifer has worked for the courts, the California Department of Justice, and private industry, as well as occasionally enforcing the Clean Water Act on behalf of environmental groups.
I also have with us today Usha Vedagiri. She's a Senior Vice President for Emerging Chemicals at WSP, where she specializes in risk assessment and risk management for contaminated sites and supply chain vulnerability assessments throughout the US and other countries. She's based in California and works on microplastics, PFAS, and other emerging contaminant issues.
So we have our legal team and our technical/scientific team with us. I'm really excited to dive into this today.
And on that note, I think we should start at the beginning. So, Usha, I'm gonna hand it to you first. What are microplastics, and can you take us through some of the key concepts that'd be useful for our listeners to know?
Usha Vedagiri on Microplastics
Usha Vedagiri:
Okay. Well, we all feel we know what plastics are because it's so much a part of our day-to-day lives in terms of what we use in our everyday life. But it's actually a complex mix when you talk about plastics, with a lot of variety in chemical structures and properties and the shapes and sizes and uses associated with plastics.
To begin with, I'm gonna define what plastics are, and then we'll get to what microplastics are.
So, plastics are synthetic solid polymeric materials. They usually have chemical additives or other substances added to them in order to provide the properties desired for their ultimate uses. Depending on what's been added, different plastics have different names like:
You might have seen these abbreviations in recycling labels and recommendations. And they have different properties. Some plastics are soft and pliable. Some can float, some can sink, and so on.
Now, microplastics are a very small size range of plastics within this universe of plastics, and they are particles that are larger than one nanometer and less than five millimeters in length. So to put it in perspective, their size range varies from 60,000 times smaller than the thickness of a human hair to about the diameter of a drinking straw.
When we think of pictures like the plastics garbage in the Pacific Ocean—we've all seen those pictures—that's a combination of macro and microplastics. The stuff that's visible is the macroplastics, the big stuff, but it actually includes the micro portion, which is the one nanometer to five millimeter range.
In addition, we will see the term nanoplastics often used. That's a subcategory of the small end of microplastics. These are materials that are larger than one nanometer in length, but they only go up to one micrometer, which is a little thinner than spiderweb silk. And so you can see that nanoplastics and microplastics are a very small fraction of the overall thing of plastics.
Microplastics vary in shape and density. It includes fragments, beads, pellets, foams, fibers, films—anything, as long as it falls within that size range. And their density can affect their buoyancy and their floating and sinking behavior.
Talia Gordner:
That's so interesting. I know we talk about microplastics, and I think a lot of times nanoplastics kind of gets looped into the mix, but it's useful to know there is kind of a separate category and definition for them.
Where do microplastics come from? Is there one source? Are there many sources? Useful to hear you speak about that.
Usha Vedagiri:
There are many ways of looking at sources of microplastics, but one good way is to think about whether they are made that way or become that way.
So if they are made that way, we call them primary microplastics, and it means they're directly manufactured as microplastics within that size range. And they're intentionally added for specific applications of products like:
The secondary microplastics are those that originate from larger plastics like macroplastics. They then fragment into smaller pieces and they get to the size range that fits into the microplastic range.
So some of the most common and abundant sources of secondary microplastics are:
Talia Gordner:
That's such a great segue because one of our other episodes is about some of the emerging contaminants coming off of cars, such as brake dust and car tire particles. So thank you for letting me pitch our other episode that's gonna be coming up soon.
I also love the word nurdles and I'm gonna try to find a way to use it more frequently. I see Jennifer nodding her head as well, so I think we're all in agreement that word needs to be used more often.
We know where microplastics come from now—how are they getting released into the environment, and how are they being distributed throughout the environment?
Usha Vedagiri:
There are so many ways that they can enter the environment, and it starts from production to release through point and non-point sources. And then once they're in the environment, they keep getting cycled and recycled around and around.
In terms of production, the commercial production of plastics began in the 1920s and '30s, but by 2019, the worldwide production of plastics was about 370 million metric tons. And out of this:
So this is where it starts with the production.
Then, the release to the environment can happen through point and non-point sources. Once they are released, they can enter any environmental compartment such as air, water, soil, sediment, and they can also be transferred among these compartments.
There's long-range transport over thousands of miles by wind. They can deposit on the ground and be washed out again. They can sink or float in water, and they can be carried by currents from freshwater to oceans.
Now, when I say point sources and non-point sources:
Talia Gordner:
It sounds like once they're in the environment, they can really move around anywhere. There's not really a limit to it, just where there's access or where there's some sort of energy to give them some movement.
So that's in the environment. But I think we also know plastic is everywhere in our lives. We're probably all touching some plastic right now, and I think up until this really became an emerging contaminant—or maybe it is a full-blown contaminant at this point—we all really considered plastic to be inert and inherently safe material.
Now we're hearing that it's toxic. I know plastic manufactured items have been added to the toxic substances list under the Canadian Environmental Protection Act, and I know that term is being used elsewhere, including in the U.S.
Can you tell us a bit about what's going on there?
Usha Vedagiri:
So this is a very active area of study, and it turns out that the inertness itself may be a problem, plus, there are some other ways that microplastics can be toxic.
But first, let me define what we mean when we say toxic. It means that exposures—such as consuming or inhaling or touching microplastics—actually leads to some kind of negative health effect. And negative health effect can be impacts on survival, growth, reproduction, biological functioning, and so on.
For microplastics, we are at the stage where exposure to microplastics is well documented. We have lots of lab and field studies that show microplastics are everywhere and in everything, including our blood, our tissues, organs. Sampling and analytical methods are still evolving, but there's a lot of information out there that it's already entered our bodies and animals, plants—and if you go look for it, you'll find it pretty much in all kinds of living organisms.
That's the exposure part.
But the toxicity studies, which are the ones that actually document whether a health effect is happening or likely to happen—so far, they are mostly based on cell culture and animal studies done in the labs. There's not as much information in the way of fully validated proven effects, especially for humans.
So in that sense, there is a lot more that we need to know about how toxic microplastics are. As of now, there's more toxicity information for aquatic biota like fish and aquatic insects than for other biological groups.
Now, in terms of how they can cause toxicity, they are typically promoted by three different aspects of microplastics behavior:
Now, before I go into what the actual toxic effects are, I do want to caution: We are seeing a lot of headlines right now about microplastic toxic effects and study reports. When you see those headlines, keep some things in mind:
The reason I'm going into this detail is because this affects what the value of this study actually is. And when we see terms like:
What those headlines are actually saying is they're saying the data about toxicity may be suggestive, but it's not yet conclusive or proven. They are raising concerns and pointing out data gaps that need to be followed up.
Talia Gordner:
I'm so glad you made that point, Usha, because I see those headlines all the time, and I'm always interested. I listen to other podcasts about scientific studies and developments, and it's really important to know that scientific findings happen, really, in microscopic steps. It's tiny, tiny steps, studying one particular thing, and all the data is always useful, but that doesn't always make for a headline.
So finding where there are limits to these studies and looking behind the headline, I think it's really important. It doesn't mean microplastics aren't having impacts or aren't having health consequences, but what a study tells us versus what is potentially there and what's being studied right now, I think is a really important—this is definitely an area of developing science.
So, you know, you've talked about where we can find these types of impacts and what the studies are looking like. Are there any known human health or ecological effects of microplastics that have been confirmed?
Usha Vedagiri:
Yes, there are some. The effects can be expressed at the micro scale of cellular responses, or sometimes up to the level of organs and whole organisms.
For humans, right now, we think the greatest exposure to microplastics is from:
There are still a lot of unknowns and uncertainties and very few reliable toxicity and effects studies, especially for humans, because even the ones done on non-human mammals don't meet many of the desired criteria for a robust study.
And many possible effects have been mentioned that are based on cell culture studies. And those kinds of effects include:
And these are probably fairly reliable because these are due, in some ways, to the physical effects of the microplastics just lodging there.
A few of the reported effects in non-human mammalian studies are:
There are still many data gaps, and many more studies are needed to assess and conclusively prove many of these initially reported effects.
When it comes to ecological effects, animals can ingest microplastics accidentally, but sometimes they actually also intentionally mistake them for food particles and they intentionally eat them.
In animals, physical effects can be caused by the particles themselves, and this is fairly well documented. The particles are inhaled or ingested, and they lodge somewhere inside the body of the human or the organism—and size really matters.
They can also be transferred through the food web, actually from initial low-level consumers all the way up to top-level predators and carnivores like whales and hawks and so on.
There was a recent article in the Washington Post about lab studies on microplastics' effects on bees and how they can get coated in microplastic that they pick up from air, water, soil, and flowers—and apparently it can confuse them and reduce their ability to pollinate.
Understanding the chemically mediated effects depends on what the chemicals are. Similarly, disease-causing microbial exposures depend on what the bacterial and viral strains are. Many studies are also underway on these topics.
Talia Gordner:
I'm not gonna lie to you, Usha, that was a pretty dark answer. Thinking about microplastics causing irritation or obstruction—and we're lucky, we're slightly bigger organisms, but we know there's a lot of this stuff out there—and the bees article is pretty sad.
Hopefully, we can start to see some regulation on this. Planning what's in the environment—in the environment, I know there are some efforts out there to start removing this. But microplastics are so hard because they're so small—it's easy to pick up waste on your beach, it's not so easy to find microplastics that are so small that they're on tiny little bumblebees.
So it's something really to consider when we're looking at how to reverse the impact of this particular emerging contaminant.
And on that note, I'd like to turn it over to Jennifer. Now we're gonna talk about some of the legal ramifications of plastics and microplastics.
Jennifer Novak on Legal Ramifications of Plastics & Microplastics
Talia Gordner:
We start at the beginning, and I know you kind of set the context here for how microplastics end up in our environment and their impacts and what they are.
Jennifer, can you kind of start us early on on where we started seeing regulation of plastics in the U.S. and elsewhere?
Jennifer Novak:
Sure. I mean, if we're talking about the United States, we didn't start seeing regulation until pretty recently. Plastics have been part of our lives for over a century, but for much of that time, we just weren't regulating it—and it's because we saw plastics as being modern and convenient and hygienic.
So our government, at the federal level and state level, really took a hands-off approach.
And from about the fifties to the seventies, we had that period of time where the federal government was passing landmark environmental legislation. And plastics were arguably part of what we could regulate, but it was more generally addressed as pollution. And we're talking about laws like:
And then, for the next 30 years or so, the federal government did start to recognize plastics, but really more as like a trash issue. So the emphasis was on consumer behavior with a push to "Keep America Beautiful" or "reduce, reuse, recycle." Even though—side note—most plastics were not recyclable, that was still the emphasis.
And now we are starting to see the federal government doing more about plastics. But—spoiler alert—it still isn't that much.
The only federal law that specifically targets a plastic product is the Microbead-Free Waters Act that passed in 2015. Usha referenced the microbeads earlier, so this particular act banned the manufacturer and sale of rinse-off cosmetics like toothpaste and face scrubs that contained plastic microbeads.
More recently, the Bipartisan Infrastructure Law of 2022 included plastics as emerging contaminants that could qualify for clean water and drinking water revolving fund provisions. But that is in question as to whether or not we will see money put toward that end, as we've just seen President Trump's proposed 2026 budget, which would cut these funds by about 89%. So even these limited efforts are in question.
We do have some federal laws that address plastic waste indirectly:
We also have, from an executive branch policy level, EPA's National Recycling Strategy, which was adopted in 2021. But even then, those are goals, not requirements, and they really look to improve our recycling and reduce contamination, which is effectively taking our current system and just tweaking it, not really changing it.
Also within the administrative field, in recent years we've seen EPA reject a proposal from the state of Hawaii to review whether its waters were impaired water bodies, because Hawaii hadn't considered whether its waters were impaired by plastic.
So again, while not a law, it could foreshadow where we're going in terms of using existing federal law, like the Clean Water Act, to define plastic as a pollutant and regulate it like other pollutants.
But truthfully, for the most part, here in the United States, the federal government has been reactive and its efforts have been limited. It's really the states that have made the most meaningful progress on plastics regulation.
Talia Gordner:
Well, that's a perfect segue. Tell us what's happening in the States.
Jennifer Novak:
Sure. Well, at the state level, it's really no surprise that California has been at the forefront of plastics regulation. It had the first city to ban plastic bags—that's San Francisco. It was the first state to ban single-use plastic bags.
And more recently, California has passed laws requiring that plastics producers start paying toward waste management and pollution mitigation. California also has passed legislation to require producers to reduce plastic packaging by 25%, albeit by 2032.
And California has also passed a law requiring large water purveyors to study how much plastic is in our drinking water—which most people find very surprising that we don't yet know what that number is, but we are starting to look at it.
Other states are also picking up on these types of laws and regulations. We have, like Maine, Washington, and Oregon, putting packaging responsibilities on producers, and New York is studying microplastics in the Great Lakes.
So we have more being done at the state level to move away from simply relying on asking consumers to recycle plastic and putting more responsibility on consumers to consume less—but trying to shift more to the manufacturers, importers, and packaging companies, at least in some states.
There are others like Texas, Florida, Arizona, that do have laws on the books that, for example, would prevent cities from adopting their own single-use plastic bag bans. So, at the state level, we are not exactly a united front, which also goes towards explaining why we don't have anything at a federal level yet.
Talia Gordner:
Well, that makes a lot of sense. And seeing the juxtaposition between different states is really interesting, especially from somebody who's not in the U.S. and doesn't practice law there.
You know, I wanna pause here also in case any of our listeners aren't familiar with extended producer responsibility (EPR), which is the concept that the party who produced the product is responsible for its recycling, disposal, and management end-of-life.
So sometimes that involves programs where you're actually funding the recycling system, taking it over—which is usually something that's left to a municipality—and shifting it back to the producer. So that'll often be the owner of the brand that you'll see on the product, or the importer of record is somebody else who you'll often see that will be actually deemed to be responsible for funding the recycling of that product.
So when we're talking about plastic in terms of the rest of the world, you know, I'll jump in here and talk a little bit about what's going on in Canada.
Talia Gordner on Canada’s Plastic Regulations
We also—I think everyone here has mentioned—the prohibition of microbeads. It's such an easy one because it's this one specific instance of microplastics that are added, and there's so many other alternatives you can use in skincare and personal products. So we similarly have that prohibition.
But otherwise, most of the regulation is focused on macro plastics. And this shows up in a few different ways:
Two other things that are coming in and are proposed and haven't been fully implemented yet at the federal level in Canada:
So that's Canada.
Jennifer, can you tell us a little bit about other jurisdictions outside of North America?
Jennifer Novak:
Sure. Just generally, there were other countries and areas that acted sooner than we did here in the United States.
So for example, it was back in the 1990s that the European Union began requiring that a certain percentage of packaging be recovered or recycled, and they included plastics within these requirements. Canada, as you mentioned, and Japan also adopted these kinds of policies around the same time.
When it came to single-use items, we actually saw action in developing countries before we did here in the United States. So as early as the 2000s—back in 2002—Bangladesh adopted a nationwide plastic bag ban, whereas the United States, as I mentioned before, still doesn't have one.
California was the first US state to adopt the ban, and that wasn't until 12 years after Bangladesh. And even then we were delayed because of lawsuits challenging that law, and so it didn't take effect for a few years after that.
So when we're comparing the United States to the international community, it wasn't until just the last 10 years or so that we saw the United States start to catch up to other countries to confront the plastics issue, and that's primarily because other countries stopped taking our waste for recycling. We didn't have as many places to send it to, and we had to start dealing with the problem on our own.
And at that point in time, we started to see the United States shift away from litter control and voluntary recycling and start thinking about reducing the amount of plastic similar to what the other countries were doing.
Talia Gordner:
Well that's interesting. And I know, from a Canadian perspective, we're always looking at the EU to see what's coming for all of us. And that's a really common place to be looking, 'cause they are usually ahead on environmental law.
Now in terms of looking at this more globally, there is a UN Global Plastics Treaty being negotiated, though of course now it's exceeded its planned timelines for finalizing the language.
Is this something we can expect the US to participate in?
Jennifer Novak:
So, as you've alluded to, since 2022, the UN has been negotiating a treaty to address microplastics—to address plastic pollution and reduce it, eliminate unnecessary single-use plastics, and mitigate microplastic pollution overall.
And even though the United States has been participating in these negotiations and did make some progress previously in shifting away from trying to take a country-by-country approach to align more with the EU, even then, under the Biden administration, the United States was non-committal and criticized for not being strong enough.
And what we have now is a change in our administration. And while President Trump has not specifically commented on this treaty and his intentions for the United States to participate or not, his administration has signaled strong support for the fossil fuel industry—of course, plastics are made with fossil fuels from our oil producers—and given just the overall sentiment that the administration has signaled toward environmental issues generally, I would say, at best, you should expect the United States to do nothing to help this treaty. And if it actually comes up, we may take action to pull away from everyone else.
Talia Gordner:
Well, that's a little disappointing to hear, but certainly not surprising based on the change in administration and the different viewpoints on environmental law.
Canada, I know, is planning on being a signatory to the treaty, and I'll be interested to see how the next negotiation session proceeds in August. It's something I've been following for now quite a few years.
So stepping away from legal just for a moment to turn it back to Usha.
Usha Vedagiri on Microplastics in the Real World
Talia Gordner:
Can you tell us how microplastics in the environment are showing up and being addressed or investigated in your world?
Usha Vedagiri:
Well, my world is regulators, plastics manufacturers and users, and the general public. And without exception, I would say people are very concerned about plastics overall, including the manufacturers and users, in their private life, so to speak.
People are shocked when they hear that all their recycling efforts only lead to about 10% of plastics being recycled. And concern about microplastics requires more informed self-education, whereas usually it's easier to react to the microplastics all around us because they are very visible, unsightly litter and debris.
But overall, this results in a general anxiety, I think, about the persistence of all plastics as well as microplastics and the feeling that some things should be done about use and release of all plastics.
Even in the States where there isn't a lot of regulatory action going on, I feel the regulators are interested in taking a more active role, if only they had the political support to regulate microplastics.
And there are some strong investigative challenges that remain in that area because just measuring and quantifying microplastics—sampling and analysis is very much a developing area that needs support.
And also, as I had mentioned earlier, we need a lot more documentation about adverse health effects 'cause that helps you come up with threshold values or standards about how much removal and how much control is enough to reduce the level of risks.
But overall—for me, speaking personally—I don't think we need to wait until all that proof is there before we start doing something about plastics and microplastics in general.
Talia Gordner:
Thanks, Usha. I think that's a very practical approach, and I definitely agree with you that we don't need to see the end of every single study and what's gonna be probably a long-term field of study and scientific findings—where we don't know exactly what the end result is gonna be, but we certainly know it's something that is having adverse effects, that is affecting our environment, and it is certainly worth focusing on in terms of regulation.
So on that note, my final question is to Jennifer.
Jennifer Novak on the Future of Plastic Regulation in the U.S.
Talia Gordner:
Where do you see the US in terms of plastic regulation in the next 5 to 10 years?
Jennifer Novak:
Well, that's hard to say, because I think that we will see a lot of changes within 5 years, 10 years, as we see different people come to power and different attitudes.
As Usha mentioned, it's not that people disagree that plastics is a big problem and that we should be making progress toward further studies on health, further studies on transmission, and having more regulation.
But in the short term, at least, we have an administration that has signaled a preference for pulling back from environmental regulation. I think President Trump even signed an executive order in support of plastic straws, which we have been trying to remove from the consumer world for a while.
So, in the meantime, it's going to be the States who will lead the way.
So we have the States trying to little bit by little bit make some progress, even absent federal assistance.
And a lot of this is still going to focus on the consumer pushing for better labeling, better choices, more recycling, more information.
Which leads into the fact that, like other emerging contaminants, we are starting to see more lawsuits. And, for now, the focus of these lawsuits has really been on consumer labeling and fraud and deceptive business practices. So, really more based in consumer law than environmental law.
More recently:
New York just had their action dismissed at the end of last year. I'm certain that will go through the appeal process. California's lawsuit is still pretty new, so we'll watch that one and we'll continue to see whether or not the states can make some progress on the environmental front and not just on a consumer fraud type of basis.
We also are seeing throughout the country—as we define what a pollutant is under the Clean Water Act—some push by environmental groups to use the Clean Water Act to address plastics pollution that way through NPDES permit challenges.
I would expect this to pick up, especially as you know here in California as we start to sample more of our water to see whether or not we have microplastics in them. I would expect a push for us to start including microplastics within the definition of what we're putting into our permits.
And as Usha mentioned, we're really, really behind in terms of studying this issue. And the nature of environmental law is that the more we study it and the more science we have, the more we start to regulate it. So as we start to go through that process, we will definitely see that.
And, as a final note, as we talked about in preparing for today, I think that the average person has a reaction to learning about the prevalence of plastics in our world as well as in our bodies, and not knowing what the effect is.
I think this is one of those situations where we will be going through a leapfrogging of some of the usual decades of studies, then we regulate, and then we start taking small bites at the apple—and I think consumers will really be pushing for us to do a lot more, a lot faster, especially as more studies come out.
Talia Gordner:
That's really insightful, Jennifer.
And Usha, any final thoughts from you?
Usha Vedagiri:
No, I think Jennifer said it really, really well. I just feel that it's very difficult to live totally without plastics in our lives. They have so many uses. However, we can definitely do a better job of managing how much or how little we use and how it is released or not released and how it is controlled.
Talia Gordner:
And I'll take a final optimistic viewpoint. From my perspective, I think we are gonna see more regulation. I know we are in Canada. I know the U.S. is a little bit limping along right now, but they are moving in the same direction as the EU. And you know, Canada isn't lagging behind the EU, but I think that's gonna be really focused on:
The Canadian products that we're prohibited—we call the single-use plastic ban—we're easy targets for it considering there's very obvious effective alternatives, whether people love a plastic straw or not. There are other things available out there.
And I know the US is a little bit paused somewhat on these developments, but I think it's useful to look around the world and see what else is going on and knowing that we're all generally moving in that direction.
And I expect that we'll see the same with microplastics, whether it's a 5-year, a 10-year, 20, or even longer timeframe for that. I do think it's an area that's gonna continue to evolve and we're gonna continue to stay tuned in on.
So thank you, Jennifer and Usha, so much for joining us on our Emerging Contaminant podcast series. Your insights were super interesting and helpful. I know I learned a lot. I'm sure all the other audience members did as well.
So make sure to tune into our other podcast episodes. We have one on:
So we hope to see you at those episodes as well, and hope you all have a wonderful day.
Closing:
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