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The American Bar Association section of Environment, Energy and Resources, is a member organization whose mission is to foster the success of a diverse community of environmental, energy and resources, lawyers, advisors, law students and decision makers, and provide a premier forum for the exchange of ideas.
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This is episode #7 in the microplastics series, which is covering near term and future potential regulatory efforts.
If you missed it, the prior episode covered current regulatory efforts.
I want to welcome our presenters and allow them an opportunity to introduce themselves.
Today we have with us Kevin Boudris, who is senior counsel and program director at just Zero, and Jennifer Novak with the Law Office of Jennifer F Novak.
Thank you both for joining us.
Thank you.
Thanks so much for having us.
So can you give us a little bit about your backgrounds, please?
Happy to thanks.
So as you mentioned, I'm senior counsel and program director at just zero.
We're a new nonprofit organization that works alongside communities and policymakers to implement just and equitable solutions to our waste crisis.
Our goal at just zero is to help create a world that relies on community centered 0 waste solutions with zero climate damaging emissions and zero toxic exposures.
We work to eliminate unnecessary single use plastics and their harmful downstream effects, including microplastic pollution, and, as mentioned, Leland I'm Jennifer Novak.
I'm an environmental lawyer in the Los Angeles area.
Our firm focuses exclusively on environmental compliance advice and litigation matters.
I've worked with the regulated community, environmental nonprofits, and many of the California State agencies that are working toward reducing plastics in our consumer product stream and our waste streams.
And I'm happy to be here.
Well, thank you both again for joining us and I wanna start off with kind of an overarching question here for you both.
What are microplastics when I say microplastics?
What do you think of at the very non scientific answer on my end is I think of the jar I have at home.
My daughter and I have done a lot of beach cleanups over the years and as a result we see the end product of what happens to plastic products when they get broken down and not recycled and not disposed of properly.
And it's this gorgeous jar of teeny tiny little bits of colored plastic, just as a reminder of how prevalent plastic is in our society and how it really doesn't just go away.
Thank you.
And what about you, Kevin?
So, you know, I really think of microplastics in, in a similar way to Jennifer, and that she mentions that she sees them as kind of the end product of all of these plastics in our lives.
I see microplastics as as really one of the last steps in the plastics pollution life cycle.
They are tiny and yet prominent.
And that they're contaminating our air, our water and our soil.
And yet, at the same time, they're only one of the ways in which plastics are impacting and damaging our environment and our day to day health.
The the plastics cycle really pollutes at every stage, so from the very beginning of plastics, when fossil fuels are extracted from the ground to make the plastics that are in our lives to refining those fossil fuels into plastics, to wrapping so much of our consumer goods and our groceries and plastic to disposing of those plastics and landfills and incinerators and all the way through to those plastics that don't make it into the disposal and recycling systems.
And then end up as right microplastics in our environment.
Each one of these stages in the plastic slight cycle is intensely damaging and intensely dangerous, and so it's important to recognize that microplastics are really toxic form of plastic pollution.
And yet, at the same time, they're only one one phase of the problem here.
So our solutions need to straight back at microplastics and at this plastics pollution cycle as a whole.
So it sounds like microplastics really are.
Kind of everywhere.
So what?
What's being done to address those microplastics in our waste stream, and how well is that working so we learned this?
I think you've covered in recent episodes.
You know, much of the current approach to microplastics is focused on recycling and on individual product bands.
Things like banning plastic bags and polystyrene foam, fruit containers, some of this, especially the plastic product bands, is extraordinarily important.
As a first step, at the end of the day, this approach is only going to get us so far, because plastic recycling is largely been effective and we're still left with this plastic pollution cycle where we're producing and disposing of a huge amount of plastic.
We really are in desperate need of solutions that stop plastic pollution before it starts and so here I'm talking about laws and policies that significantly restrict new plastics production and help us pivot quickly to reuse and refill solutions.
And also importantly, as we move beyond the current approach, we need to push back against false solutions that threaten to increase plastics production and increase our reliance on single use plastics.
Ultimately, we're gonna need more than what the current approach offers.
We need to start with these product bands, but only through systems that are built on reuse can we say goodbye to the root cause of microplastics pollution, and that root cause, of course, is all of a single use.
Plastics that are still in our eyes teeing off of what Kevin mentioned, I mean we we always hear the phrase reduce, reuse, recycle and so far a lot of the regulatory efforts have really focused on the recycle portion of this which lulls people into a false sense of security thinking that they can use whatever products they want to use packaged however they want to package it.
And it's OK because it gets recycled and more and more in our news, we're hearing about the fact that that's not actually true.
Most products are not recycled, even the ones that you can exchange for money.
We have had this tradition of sending our plastic away for recycling and that's not as easy as solution as we once were able to take advantage of and to date what we've really seen are these baby steps toward recognizing the effect that plastic has on our natural environment.
And there's reluctance by governments to counteract industry and consumer behavior.
We really have become dependent upon plastic and so many aspects of our lives.
So where we have seen the government step in, as Kevin alluded to, it's usually with programs like plastic bag bans or limiting the use of straws or Styrofoam or other disposables or just providing recycling incentives and not really getting to the root of the problem.
So we're really behind on where we need to be in terms of a studying the plastics issue and B, putting ourselves in a position where we can better regulate it.
And as we'll talk about in a minute that then effects where we are in terms of anticipated future activities, so sounds like you see regulatory efforts is really lagging behind the time so to speak.
What is being done to improve the current regulatory system?
So under the current regulatory system as it exists now, one of our best tools for stopping plastic pollution before it starts are deposit return systems, also known as bottle bills.
These are the programs that exist in 10 states currently in the US, where you place a small deposit, 5 or $0.10, usually on a beverage container when you purchase it, and then when you're done drinking that beverage, you bring the container back to either a store or redemption center to be recycled and you get that deposit back.
We can really improve this current system by expanding and breathing new life into our bottle bill programs to really maximize what they have to offer.
As I mentioned, the only 10 states in the US have bottle bills right now, and most of those programs were put in place in the early 1980s.
But even those older bottle bills, they still work.
So financial incentives that comes with a bottle bill has been proven time and time again.
The cheap plastic bottles out of our environment?
Less plastic litter and our environment means fewer microplastics in our water, air and soil.
It's just that simple, but even on top of that, these systems are more effective at recycling plastic bottles than curbside recycling programs are.
And most important of all, new modern model bills can be an effective way to rely on reusable containers so that we can cut single use plastic containers entirely out of our beverage system.
We can improve what we have now by putting more bottle bills in place across the US by modernizing these deposit values and increasing the scope of containers that fall within bottle bill programs and by incorporating reusable bottles into bottle bills and deposit return systems that can help us take our current regulatory landscape.
Take what we have in some states already.
Make it work harder and make it work smarter for us as we seek to tackle the plastics crisis.
So before I talk about some of the anticipated efforts across the country from a legislation standpoint, I actually wanted to share a story.
I visited Germany for the first time this summer and found it surprisingly and and wonderfully easy to be able to recycle glass and plastic bottles at the very supermarkets, not hidden, meaning people don't know.
You can take it to a cashier, for example, and and redeem for credits, but there was a machine right next door to the market where you could feed your bottles and and then would spit out a ticket that you could then go in and use the market to get you deducted from your overall grocery bill.
I mean, literally walk up, feed it through the machine, get your ticket and walk into the store in a matter of minutes.
And despite the current programs that those 10 states have and let me underscore and Kevin said it twice, I think for a reason 10 states out of 50 is not great in terms of having these incentive programs.
And even still, they're falling short and not recycling anywhere near the amount that people could be as a result of of having that program in place.
So definitely there's more that can be done there and we don't have to look far to find workable models to copy.
But you know, looking at current legislative efforts right now, for example, California has a bill and it's, you know, pipeline that would require large ecommerce shippers that conduct business with Californians to reduce the amount of single use plastic shipping envelopes and fill.
So it's an example of trying to deep plasticize existing practices, not trying to do anything radical that would require people to change their consumer habits.
And Even so, this wouldn't happen right away.
The deadline for this sizable reduction would be January 2030, so quite some time into the future.
Another example of trying to do the efforts to reduce the amount of plastic that we already have in our system.
The state of Washington is thinking about requiring at the producers of plastic packaging to use more recycled plastic content and has set a goal that at least 50% of its packaging be made from post consumer recycled plastic.
So again, not a total ban.
It doesn't prevent new plastic from being manufactured, and it still doesn't discourage people from using plastic.
It just slows the amount that we're creating.
I also question what would happen if they're not recycling enough and creating enough of that post consumer material for the manufacturers to use, and whether or not we would then see exemptions.
Another example is that Hawaii has proposed legislation to ban small plastic bottles from most hotels, and if you've been traveling recently, you see that some hotels are already doing this voluntarily, or they provide your shampoo and your soap through dispensers so that you're not confronted with so much plastic that just gets thrown away.
But here we have an example of a state trying to go further than just those voluntary programs.
All of these are really examples of states that are trying to be at the forefront and and the one I could find that is the biggest example of trying to go big.
While the majority of the country is trying to play catch up is the state of New York, which has a bill to prohibit the state or Distribution scuse me the sale or distribution of single use plastics almost entirely.
But meanwhile, as you're hearing so far, a lot of the country is still playing catch up and even thinking for the first time.
I don't things like plastic bag bans or charging fees for that, so we definitely have a disparity and how people are approaching and understanding the problem and I'll call it end to end control of approaches at the state level to try to do bag bans or or ways to control the amount of plastic that is going into the system have have you seen more creative ways?
So I think of kind of like the startup space where there are like competitions to come up with you know new ways to do things have have you seen seen things like that or or our states really not active in in that kind of thought process?
Well, it's certainly the one that comes to mind is you're dealing with other types of household waste, more the kinds of plastics that aren't covered by many of the municipal recycling programs.
And I will say, without going into too much detail, you know I have a client right now that is exploring, establishing itself in California as an alternative to be able to allow people to do more recycling.
And what they're finding is that they're not quite sure if they fit in.
Can they come in and take care of this, or are they gonna be seen as illegally handling this material when the state on one hand is trying to encourage more recycling, but on the other not exactly making it easy for people to do so.
So that is a legal issue we're trying to sort out for them right now.
Are we seeing new approaches toward reducing the amount of plastics in our consumer product and waste streams?
I think yes.
Again, there are certain states that seem to be taking this going big approach.
The one that most comes to mind that I found was in the state of Hawaii.
They are hoping to be able to define a water pollutant as including microplastics, which would then mean, you know, plastics regulation is gonna be the same as regulating any other pollutant.
I think they're gonna run into some problems quite honestly, because I don't know that we have the data that allows them to effectively know how to do that, but it certainly is ambitious and it's creative and it takes advantage of a system that we already have.
I'll note that other states are looking, you know, toward doing more from a financial standpoint and creating incentives.
So Arizona is considering a law to allow businesses to collect a fee from customers for single use cups, straws, containers, some of that fee would be given to municipalities to fund rebates for consumers, and some would be used for household hazardous wastes.
Excuse me, household waste.
And in California, as of June 2022, we have a new law on the books to require all packaging to be recyclable or compostable by 2032, and would also look toward the finances of those programs.
So asking manufacturers to start paying into a fund five years from now to remedy the effects of plastic pollution on disadvantaged communities and on the environment.
But you know, I will still note that as ambitious as these programs are, they still work.
Within traditional systems, even if they're starting to expand the creativity event, consumers are still going to buy products.
We're just gonna package them differently.
Consumers can still use disposable materials.
They just need to be made from materials that we can call recyclable.
And as I mentioned and has been mentioned in a prior episode of the series, and I'll mention again in a few minutes, we have a lack of scientific data that would allow us to understand how we can better approach these systems.
And I think until we have that information, we are still going to be limited in how we think about attacking the problem, to build off something that that Jennifer said and something that I mentioned earlier in the episode.
You know, as as we look to these new approaches and try to rethink our packaging, you know it's important to more and more emphasize supporting for you Systems as a part of these solutions fees on plastics, eliminating certain types of single use plastics, providing incentives and funding is is important.
But ultimately we have to move on to something that replaces single use plastic packaging.
We just can't get rid of single use plastic packaging without having the infrastructure in place for reuse systems, so it's important to remember that widespread reuse, reusable packaging, etcetera is the only exit ramp here from the plastics pollution life cycle.
And we can get there.
We can get to that exit ramp with solutions that provide the right incentives and mandates for packaging producers and consumer brands to reduce their packaging overall, move away from single use plastic packaging, but also provide and create the programs and systems that support widespread adoption of reusable packaging.
So things like bottle refill stations, reusable beverage containers, reusable take out container programs, reusable packaging for ecommerce or big box stores or beauty products.
These we, we we can't just pluck these things from thin air.
We need the funding and we need the systems and programs in place so that these are easy to adopt and it's easy for us as consumers to choose a restaurant that has we spoke, take out containers that we can return to the store, that someone can come pick up has to be easy for us to go to the store and buy shampoo or conditioner or hair product or any other kind of beauty product in a reusable container that can either be shipped back or shipped back or returned so that we can then buy that product again.
In the same container without breaking it down and recycling it with the right laws in place and by leaning on programs like bottle bills and extended producer responsibility that sympathize reuse, we can make these types of systems this type of reusable packaging a reality 6 add add something really quickly though.
What I'd like to add on to what Kevin was mentioning is I think one of the reasons why we even are talking about the need for laws and and regulations is because we are fighting an entire system Once Upon a time.
If people had a product, they fixed it.
They you know, they they found alternatives.
Simply discarding and buying something new and we have a very consumer oriented world where we keep consuming, consuming and that is encouraged as opposed to taking a step back and using what you have.
And so that also requires us to step in and start.
I don't know babysitting people a little bit more and trying to force force solutions on to existing habits and consumer behaviors and undoing several decades worth of encouragement of, you know, having people just continue to use products instead of taking a step back and saying, do I need to?
So it it is a system that we are trying to slowly start.
I won't say dismantling, but reshaping, I would say, and Kevin's braids some good points about how it's not that hard.
And we used to do it.
We just have to retrain our brains a little bit.
And and unfortunately, there's a lot of obstacles in the way, and I think it's.
I think that's such an important point, Jennifer, that we're up against this whole system.
You know, we as individuals right now can make some better choices.
I can go to the grocery store and choose some vegetables, some products, some food that's packaged in no plastic or is packaged in less plastic.
But it is downright impossible to come away with the grocery store without still a significant amount of single use plastic in in your grocery bags, in, in your grocery cart.
So it can't just be left to us as consumers to make the right choices, we need to change the Systems first so that we then have the better choices that we can make, that we can be incentivized to make.
We've gotta look big.
Instead of thinking small about like ohh hey, if only we were all doing a little bit better, all of us doing just a little bit better when we're up against these systemic problems, it's not gonna solve it.
We need.
We need these big, bold programs and laws to help us get there in the first place.
As as we keep talking about this, I have this picture in my head of kind of old time glass milk bottles right where where you would reuse the same glass milk bottle over and over again.
And there was a like service that took care of that for you.
So maybe you know part of this is we can look back to kind of look forward to new ways for doing things.
It sounds like a lot of potential options out there, but maybe they just need a little bit of a stick to help us get there.
So what else should we expect from a regulatory standpoint for both, you know, on the corporate side and for individual consumers.
So as I referenced earlier and was discussed in a prior episode in California, we're certainly looking to the state Water Resources Control Board's efforts to begin collecting data on plastics in our drinking water.
And I was at a Chamber of Commerce meeting, and this whole issue came up and people were genuinely confused because they just assumed that, of course, we're not all consuming plastic in our drinking water.
It seemed really odd to them that we would even be talking about how this is a big issue, a big deal, that water districts are now going to have to start monitoring their drinking water for microplastics.
And that's gonna take years.
The state water boards efforts I think are looking to start number one, creating standard sampling and monitoring and reporting procedures, but then to collect four years worth of data and even at that point in time, they're the only government body that we know of that is undertaking this effort.
So at that point in time where they finally have collected their data and they can report out what the results are, only then can everyone else decide what it means and how to use it to better regulate what we're looking at.
And I think it's gonna depend on on how scary that data are, to see how fast people can react to it and how seriously they are going to start taking that problem to reduce the amount that's already, you know, out there and potentially going to enter.
As Kevin mentioned, a variety of media.
Let me jump ahead for a second and note that when I was looking to see if we have similar studies right now with respect to the amount of plastics we may be inhaling, I couldn't find results.
You are Air Resources board in California is extremely progressive.
Certainly industry does not love the ARB, but they don't have any current resolutions or proposals to start looking at.
The amount of plastics in our air.
So while I expect that we're going to move toward better regulation, we still lack a lot of the data that we need in order to be able to know how best to tackle this problem and how forcefully to at the other end of the plastics pollution life cycle, if you will and the other end of the regulatory spectrum, I think we should also expect to see over the next few years a stronger emphasis on programs that again put the onus upstream on the companies that are making and selling all of the plastic that's in our lives.
One of those programs, there's been a hot topic even over the past two years and will continue to be so over the next few years is extended producer responsibility for packaging producer responsibility for packaging seeks to hold packaging producers and consumer brands accountable for the plastic waste they generate.
And it can take on many different forms a number of different states have already taken some divergent approaches to produce a responsibility for packaging, and some of these approaches have significant flaws that threaten to do more harm than good when it comes to looking at the plastic problem upstream and trying to take action through produce responsibility.
Ultimately, to successfully address plastic pollution producer responsibility, laws really need to enqueue and Claude a few key elements.
1st is strong oversight and accountability.
These programs can't just be left in the hands of plastic producers themselves.
We can't allow the packaging, producers and consumer brands that helped create this plastic crisis in the 1st place to be in charge of a system that should be working to eliminate single use plastic packaging, an item that they derive much of their profit from.
Second, to be successful, produce responsibility programs really need to incorporate both financial incentives and packaging reduction mandates.
These incentives and mandates should push producers and brands to reduce and eliminate unrecyclable plastic packaging and replace that packaging with more easily recyclable and hopefully reusable options.
And third, these laws you think need to force producers and brands to eliminate toxics from their packaging.
Much of our plastic packaging is laden with carcinogens.
Endocrine disruptors.
Heavy metals, other toxics.
All of these things end up in those microplastics that are contaminating our environment.
It can invading our air, our water and our soil to be effective and protective producer responsibilities.
Laws must force packaging producers to eliminate these toxics from their from their products at the end of the day.
Now all producer responsibility is created equal.
We need states to adopt the right kinds of produce responsibility laws that will help alleviate, rather than worsen our plastics crisis.
And you know, I'd love to say the Devils in the details.
So even in the states, and again, we have noted that not all states are equal in this regard, and it really is a very vocal minority of states that are trying to regulate this issue at all.
But despite all the progress that the proposed legislation would make #1 assuming it's passed and signed and #2 assuming they work as effectively as people hope, there is still numerous exceptions that would impede our progress.
So for example, the bill I mentioned in California that would seek to require most post cost more post consumer packaging with respect to shipping, that still only applies to E commerce shippers with annual gross sales of over $15 million and that have more than 100 full time employees.
So a lot of our smaller businesses, medium sized businesses would not be required to shift how they package their materials.
And we really are looking at, I won't name certain people, but certain companies that seem to have the bulk of a lot of the the shipping in Washington for example, their bill to try to reduce plastic packaging excludes fast food and takeout packaging and certain plastic bags under certain circumstances.
So as we look to these proposals, we really have to be careful about what industries are being carved out, what exceptions are applying, and whether they're really capturing the market or whether or not they're again just taking one much needed but smaller step toward where they need to be.
And I'll note that a lot of the bills will still include provisions to simply set up a mechanism to even study the problem so that they can take future regulatory actions.
So while it's something we desperately need, we unfortunately are still in an an ERA of information gathering.
I think it's also really important to know that not everything that we're seeing right now from a regulatory standpoint is positive or progressive.
Some of the laws and regulations being pushed and states throughout the country and right now are downright progressive.
One comes to the plastics problem.
The biggest concern here are laws that are being pushed right now by the petrochemical industry that effectively deregulate high heat plastics burning technologies as a supposed solution to our plastics pollution crisis.
These technologies are often misleadingly referred to as quote unquote, advanced recycling or chemical recycling, and they usually involve heating plastic waste up to 2000 degrees Fahrenheit or higher to essentially boil waste plastics into fuels, other hydrocarbons and waste byproducts.
These processes are toxic and climate damaging, and they only incentivize a group like greater reliance on single use plastics at a time.
Again, as we've been talking about today that we should be using moving away from single use plastics and single use plastic packaging, these deregulatory laws being pushed by the plastics industry make it easier to build these high heat plastic burning facilities and these facilities are most often cited in communities of color and low income communities.
And these deregulatory laws reclassify these facilities so they're not subject to the same common sense protections that apply to other waste and recycling facilities.
So they're taking this type of dangerous, toxic climate, damaging high heat burning process.
Putting it in areas that are already often overburdened by other industry and other waste sources, and they're trying to exempt these same facilities from the types of protections that at least try to do something to protect these communities from the harmful impacts of dangerous industrial pollution.
And on top of all of that, these facilities and these deregulatory laws really seek to keep us hooked on a cycle of making and burning as much plastic as possible.
Again, these laws and these facilities are being pushed by the plastics industry.
Their goal is not to provide a solution that moves us away from plastics.
They wanna keep profiting off of making and now burning as much plastic as possible.
That's 100% the wrong direction when it comes to addressing our plastic crisis.
The only way to address this crisis is to make less plastic.
That much is clear.
We can only get rid of the microplastics in our environment if we stop pumping out plastic into our lives in first place.
Modern bottle bills producer responsibility for packaging reuse systems.
These are all things that can get us there, but making it easier to burn plastic is only gonna make the crisis worse.
Well, there certainly is a lot going on.
It sounds like a lot of problems and a crisis as as you have put it multiple times.
Kevin, you know what are kind of your final thoughts on this.
If if there's one takeaway for the audience listening today, what what would that be?
Jennifer and Kevin, so I would love to see more emphasis on education as well as simply data gathering.
I think the more people who understand how prevalent plastics are in their lives and how much we don't know about the effects and where we really do stand in terms of our ability to reduce it and recycle it, I think more people would demand more effective regulatory action and much sooner because it is a personal issue, not simply one of you know, a couple of tree huggers who wanna, you know, clean up the world.
I think more people would demand the kinds of programs that we're discussing and we wouldn't have such an uphill battle and such a slow amount of progress toward addressing this issue.
I think that's so right, Jennifer.
And and for my part, one of the big paper ways from all this, I think should be that although many of the programs that we talked about today, many of the regulations, many of the laws, they can seem complex and frankly they are.
There, there are a lot of moving pieces in things like air and water, regulation in bottle bills in producer responsibility for packaging programs.
There's a lot there, so the mechanisms can be complex, but the goal here is really simple.
The goal needs to be less plastic.
That's that's how we fight our way to the solution here.
So regardless, especially when it comes to that education piece, regardless of all the different facets of the programs, all the moving parts, what is this program?
What is this goal moving us towards?
If it's moving us towards less plastic, less single use packaging, then that's a solution we need to push for.
If it's not, if this is just all running us around in circles to end up in the same place where we're relying on single use plastics, then then that really isn't a part of the solution and it's the type of thing we need to move away from.
So educate people on why it's better to have less plastic.
Well, thank you very much to both of our presenters today and to the ABA for hosting the next and final episode will cover litigation and future predictions.
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