A sea change to change the sea: stopping the spread of the Pacific Garbage Patch with small-scale environmental legislation.

• Author: Coulter, Jessica R.

TABLE OF CONTENTS INTRODUCTION I. THE PROBLEM A. Plastic, Plastic Everywhere B. Tragedy of the Commons II. REGULATORY STATUS QUO A. International Agreements B. Federal Laws C. State and Local Governments III. SOLUTIONS A. Nurdles--Tiny Pellets, Big Problem B. Plastic Bags 1. Bans a. Rubric for Lawsuits b. Paper Versus Plastic c. Standing d. Lawsuits in California e. Bans Are the Best Option 2. Less Viable Alternatives a. Biodegradable Plastics b. Recycling c. Taxes C. Moral Imperative CONCLUSION

INTRODUCTION

The last fallen mahogany would lie perceptibly on the landscape, and the last black rhino would be obvious in its loneliness, but a marine species may disappear beneath the waves unobserved and the sea would seem to roll on the same as always. (1) I want to say one word to you. Just one word.... Plastics. (2) Swirling masses of plastic spanning hundreds of miles lurk just beneath the surface of the Pacific Ocean. (3) These ever-increasing plastic masses are tangible reminders of the oft-forgotten consequences of using disposable plastic. As plastic use has steadily increased in the past century, the northern Pacific Ocean has begun to resemble a giant aquatic garbage can. (4) Estimates of the size of this Pacific "Garbage Patch" vary, but most researchers agree it is at least as large as the state of Texas. (5) Currently, there are no international treaties or federal laws that effectively combat this problem. (6) There are, however, smaller scale laws that have promise for stopping the spread of the Pacific Garbage Patch. Because national and international solutions for this problem are unlikely to arise in the near future, two laws in California--one regulating the use of tiny plastic pellets ("nurdles"), (7) and one banning plastic shopping bags--are the most viable legislative prototypes available today for stopping the tentacles of the Garbage Patch from creeping outward.

This Note will analyze legal and political concerns for policymakers looking to plug the regulatory gap through which plastic slips into the Pacific. Lawsuits and political controversy over plastic use have forced policymakers to assess both environmental and economic costs and benefits of restricting the use of this ubiquitous material. A complete lack of action is no longer an option, as the growing plastic problem in the Pacific adds more ballast every day to the environmental cost side of a policy analysis, indicating that the economic benefits of plastic use cannot long outweigh environmental costs and concerns. And as environmental issues gain more public attention, legislators often add moral factors to their cost-benefit analyses. An environmental moral imperative supports mandatory environmental protection measures when voluntary measures are inadequate, even in the face of economic counterarguments.

A moral imperative compels people to act a certain way. The environmental moral imperative described in this Note compels people to protect and preserve the natural environment. Monetary savings from using plastic do not counteract the immorality of polluting the Pacific Ocean and robbing future generations of the benefits of a plastic-free ocean. Accordingly, mandatory plastic control measures are necessary to remedy the garbage problem in the commons of the Pacific. Regulations like California's nurdle law are a valuable policy tool for industrial change, and bans on plastic bags are a viable option for change on the consumer side. Such mandatory environmental measures would promote an appropriate sea change in the American environmental mindset; one that could, in turn, change the plastic-ridden sea.

1. THE PROBLEM

   1. Plastic, Plastic Everywhere

      The average American sees a parade of plastic products everyday and uses hundreds of pounds of plastic every year. (8) After being discarded, plastic often takes decades, even centuries to biodegrade, (9) and only 5 percent of plastics are ever recycled. (10) Downsides of using this nonbiodegradable material are tangible in the Pacific Ocean. In the Pacific Garbage Patch, there are roughly six pounds of plastic for every pound of naturally occurring organic matter. (11) Cleaning up the plastic would be a task of gargantuan, and likely impossible, proportions. (12)

      Reducing the influx of plastic is important, however, because the Pacific Garbage Patch negatively affects animals living in and near the Patch. For example, sea animals often mistake plastics for food. (13) Worldwide, 86 percent of sea turtle species, 44 percent of sea bird species, and 43 percent of marine mammal species are prone to ingesting marine plastic. (14) The aquatic plastic refuse has health implications for humans as well. Plastics release chemical additives, pesticides, and other pollutants into the tissues of marine organisms and the ocean itself. These substances then find their way up the food chain into the human diet. (15)

      Most of the plastic in the Pacific Garbage Patch comes from land, not ships. (16) A sampling of the waste might include: diapers, six-pack rings, beverage bottles, fishing gear, and plastic bags. (17) This chunky debris is surrounded by nurdles: tiny pellets of preproduction plastic. (18) American manufacturers produce billions of pounds of nurdles every year, releasing many into the world's waterways during transport, packaging, and processing. (19) Because no single land-based consumer or producer of plastic owns the oceans, those who make and use plastic on land have little motivation to pay attention to what happens to that plastic in the sea.

   2. Tragedy of the Commons

      The Pacific Garbage Patch is a "tragedy of the commons" problem. (20) Many actors, working without a shared mission of preservation, have built up waste in a common area: the Pacific Ocean. When a person discards a plastic bag on land, or a shipping company accidentally loses part of a shipment of nurdles, those plastic articles easily can wash down a sewer drain or blow out to sea. (21) Individual consumers and manufacturers do not directly bear the costs of the negative externalities that result from plastic escaping into the sea. They do, however, realize benefits from plastic consumption, (22) such as convenient transportation of the perfect shoes from counter to car, or sanitary clean up after the daily canine constitutional. As long as the beneficiaries of plastic use need not pay for the negative externalities associated with that plastic, the Pacific Garbage Patch problem will continue.

      The challenges to solving this tragedy of the Pacific commons are similar to those facing policymakers attempting to combat climate change. No single legal regime holds the regulatory and enforcement power necessary to address the causes and harms of climate change. (23) Just as there is no international framework that holds individual actors responsible for climate change, there is no international obligation for nations to compensate an injured party for damage incurred from land-based marine pollution. (24) Because no one nation has regulatory authority over or liability for waste problems in the Pacific Ocean, nations lack motivation to solve the problem alone. (25) There is consequently no international minimum threshold setting an unacceptable level of land-based marine pollution: no canary in the aquatic coal mine. Despite the lack of a single legal body with the power, motivation, or inclination to create laws that would solve the Pacific Garbage Patch problem, there are a myriad of smaller scale policies that tangentially address this issue. None of these policies has been sufficient to tackle the patch problem seriously, but these piecemeal attempts are worth examining as potential springboards for future efforts.

2. REGULATORY STATUS Quo

   International, national, state, and local laws implicate marine debris, both directly and indirectly. (26) A survey of these laws reveals potentially effective approaches to deal with plastic marine debris, but no silver bullet. (27)

   1. International Agreements

      Because marine debris drifts across political boundaries, local, state, and national legislation can offer only partial solutions to the garbage problem in the Pacific. (28) In theory, a targeted international agreement would be the best remedy for this problem, but no such agreement exists. Several international agreements mention marine debris, but none have the force required to curb the flow of plastic from land to sea. Existing treaties and conventions generally have inadequate dispute resolution mechanisms, inadequate economic instruments, and inadequate provisions for liability. (29)

      The United Nations Convention on the Law of the Sea (30) (UNCLOS) is the only global treaty that specifically deals with land-based sources of marine debris. (31) UNCLOS falls short as a tool for improving ocean conditions in the northern Pacific for two reasons: the Pacific Garbage Patch is beyond any national water sovereignty line established in the treaty, and the treaty's provisions on marine debris are too vague to facilitate a comprehensive solution. UNCLOS established boundaries in the world's oceans, giving nations political sovereignty over waters within twelve miles of their shorelines. (32) Up to 200 miles from their shores, signatory nations have jurisdiction to protect and preserve their marine environments. (33) Even though the United States has not ratified UNCLOS, (34) it recognizes the same mile markers of sovereignty. (35) These marine sovereignty boundaries solidify the tragedy of the commons problem in the Pacific Garbage Patch. The patch is too far off any coast for a nation to use its 200-mile environmental protection authority to enforce a national law in this area. (36)

      Secondly, UNCLOS is not a powerful tool for combating the Pacific Garbage Patch because it is essentially a "bare framework" for protecting the marine environment. (37) It does not have specific, binding provisions for reducing current...