PLASTIC ACTIVISM AND THE CLEAN WATER ACT.

• Author: Salcido, Rachael E.
• Position: The Clean Water Act at 50: Requiem or Resurrection?

1. Introduction 308 II. Plastic Waste and Water Quality 310 III. Plastic Activism within the Clean Water Act 313 A. Nurdles Pollution in South Carolina (CWA [section] 402) 317 B. Hawai'i Water Quality Litigation (CWA [section] 303(d)) 318 C. Siting Plastic Production in Louisiana (CWA [section] 404) 318 D. Nurdles Pollution at Formosa in Texas (CWA [section] 402) 320 E. Petro-Plastics Petitions (Administrative Procedure Act and CWA) 321 IV. Confronting the Leadership Deficit and Eroding Rule of Law 323 A. Attention to the Plastic Problem 324 B. Structural Governance Problems for Combatting Plastic Pillution of Waterways V. Conclusion 329 I. INTRODUCTION

   Plastic is produced by mixing fossil fuels with other chemicals. (1) Single-use plastic is a major revenue generator since the items are literally designed to be infinitely replaced. (2) The plastic industry deliberately pursued this revenue generation model. (3) Because the concerns with plastic pollution are now widespread, the plastic industry is aggressively steering legal regulation to consumer usage architecture and away from limits on production or use. (4) In practice, this means promoting recycling efforts and improvements in publicly-owned treatment works, instead of reformulating or reducing the production of plastic and its toxic footprint. (5) Continuing down this path will deepen the need for robust pollution abatement efforts that have thus far eluded regulators. Existing legal regimes have been unable to handle the vast quantity of plastic and plastic-related wastes entering the environment, and for a variety of reasons, industry is about to turn the volume way up. (6) In a carbon-constrained world, the fossil fuel industry is likely to increase plastic production. Given the international commitment to decarbonize economies and dramatically reduce the use of fossil fuels to minimize the harm from climate change, (7) the main area for predicted growth in fossil fuels use is in the production of plastic. (8) Plastic production is predicted to be a leading greenhouse gas contributor, as energy systems move away from fossil fuels to sources such as solar, wind, nuclear, or other non-carbon forms of energy production. (9) Natural gas production has unlocked the raw materials for plastic production, and those producers are looking to monetize their product. (10) Moreover, recycling of plastic is expensive and inefficient since traditional plastic degrades with each recycling attempt. (11) Thus, a continued demand for virgin plastic remains the optimal revenue generator for the plastics industry.

   Moreover, society has come to see many plastic items as indispensable, and certainly people weave plastic usage throughout modern everyday life. Many people in developing nations are also adopting the convenience and disposable-based attitudes that lead to plastic consumption. (12) Population growth, as well as the expansion of buying power among growing middle classes, increases demand for a growing list of plastic consumer products. (13) Experts have noted that the quantity of plastic produced in the first decade of the century rivals the quantity produced in the entire time since its inception in the 1950s, (14) and this growing appetite will not likely abate unless governments intervene. (15)

   Thus, a convergence has occurred: at the very time we are racing to find a legal architecture to prevent future plastic pollution and technological tools to clean up pollution which has already occurred, the plastic industry is on a major expansion campaign in places like Asia and the United States to increase production of plastic--single-use plastic in particular. (16) Focusing specifically on water quality, the traditional tools contemplated by the Clean Water Act (CWA) (17) readily address the dangers of unabated plastic pollution.

2. PLASTIC WASTE AND WATER QUALITY

   Although some have noted that the CWA does not specifically address plastic, (18) water quality is the exact focus of the statute and has also been the main driver of plastic pollution concerns since they first captured modern attention. Ocean pollution was one of the canaries in the coalmine for the growing dangers from unchecked plastic production and use. (19) Thus for a time, the fixation on the ocean gyres aggregating plastic pollution sparked research interest into the potential harm plastic posed and the possible legal solutions. (20) What is often lost on the public is that land-based pollution is the main source of ocean plastic pollution. (21) It is not possible to address plastic pollution without focusing on the rivers polluted with plastic that carry pollution out to sea.

   The rivers that contribute the most to ocean plastic waste are all in Asia. (22) Moreover, plastic bottles top the list as one of the most frequently occurring waste items. (23) But international considerations aside, it is important to emphasize that the United States is a major source of plastic waste. The per capita waste generation rates in the United States put Americans in the running for generating the most plastic litter. (24) This is also despite the fact that many U.S. waste-management systems are welldeveloped, whereas systems in other countries are less robust. (25) While the international community must work toward a global agreement to tackle the problem, (26) it is imperative that the United States address local sources of pollution as one part of the effort and as a critical component of preventing harm in the United States.

   Like other industrial production processes, plastic manufacturing has the potential to pollute air and water with chemical byproducts. When plastic is produced, common chemical additives such as lead, cadmium, zinc, and copper can reach the environment. (27) After a boom in shale gas, the plastic industry is now focusing more attention on expanding plastic production in the United States, particularly in the traditional petrochemical strongholds of Louisiana and in areas along the Mississippi River. (28)

   The building blocks of many virgin single-use plastic items are called "nurdles." Nurdles are a source of local pollution even before they begin their useful timeframe within a plastic product. (29) Nurdles are particularly challenging because of their small size and density. (30) Thus, once nurdles escape into the environment, water and wind easily disperse them. (31)

   There is also good reason to focus regulatory attention on the release of used plastic products into the environment. Plastic items are notoriously difficult to capture in waste systems. (32) Plastic that is waste but that does not end up in waste receptacles is known in the business as plastic "leakage." (33) That "leakage" is, in simple terms, garbage pollution, with single-use products filling creeks and overwhelming sewer systems. (34) Once in our environment, plastic persists for hundreds of years and is often degraded over time into smaller and smaller pieces that are consumable by fish, wildlife, and humans, and float through our rivers and streams into the oceans. (35)

   The assault of plastic debris on wildlife has been well-documented with marine wildlife starved by bellies full of plastic waste. (36) Plastic waste causes physical damage to wildlife that may be trapped (entanglement), consume larger plastic products or microplastics, and suffer the ill-effects of the chemical by-products of plastic manufacturing. (37) When plastic enters waterways, it can absorb toxic chemicals from the water and thereafter transfers the toxic chemicals when animals ingest them. (38) These chemicals include polychlorinated biphenyls (PCBs), polycyclic aromatic hydrocarbons (PAHs), heavy metals, and dioxins. (39) Records show that all seven species of sea turtle have ingested microplastics, which has affected their reproductive health and survival. (40) Indeed, scientists have documented over 2,200 species impacted by marine debris. (41) Microplastics persist in the environment and are thus available for ingestion for hundreds of years. (42)

   Although much has been written about the impacts on wildlife, only more recently have the human health impacts of plastic been part of the growing call for action. (43) Water quality is inherently connected to human health. Studies have shown that plastic, plastic chemical by-products, and forever chemicals like PFAS are indeed harming human health. (44) As previously emphasized, ingested plastic particles can transfer chemicals and many of those chemicals are linked to human health impacts. (45) A study conducted by the University of New Castle for the World Wide Fund for Nature (formerly World Wildlife Fund) concluded that people eat an average of five grams--about a credit card--worth of plastic every week. (46) One of the most recent, alarming discoveries concerns reproductive health impacts. Plastic exposure has been linked to reduced sperm counts. (47) Overall, the evidence has become overwhelming that addressing the water-quality impacts of plastic are critical to societal well-being.

3. PLASTIC ACTIVISM WITHIN THE CLEAN WATER ACT

   The CWA is the primary federal statute designed to address water quality. (48) When the CWA was adopted, it was well-recognized that water pollution was harming the environment. (49) Fires burning on industrialized rivers provided a stark visual of the impact of pollution. (50) Today, plastic pollution is also visible, yet as a society, we have been slow to respond. (51) Congress did not design the CWA to address only solid waste or other traditional forms of pollution; the CWA has clearly been effective at cleaning up water pollution since its inception, (52) and in part it has met this challenge because Congress broadly defined its regulatory scope.

   Congress designed the CWA to engage both the federal government and states in a cooperative federalism legal architecture to protect the nation's waters. (53) The main components of the CWA include...