- Robert W. Adler & Carina E. Wells, Plastics and the Limits of U.S. Environmental Law, 47 Harv. Env’t L. Rev. 1 (2023).
- Mark P. Nevitt & Robert V. Percival, Can Environmental Law Solve the “Forever Chemical” Problem?, 57 Wake Forest L. Rev. 239 (2022).
When young people accusingly complain that my generation unfairly saddled them with the problem of climate change, I like to remind them that my contemporaries and immediate forebears advocated for, enacted, and implemented–indeed, invented–modern environmental law in this country. However true it is that we failed to protect our heirs from climate change, we are bequeathing them a world that is demonstrably cleaner and healthier than it would have been absent the spate of environmental lawmaking that began in 1970.
In the articles reviewed here, two lions of the founding era, each writing with a younger co-author, remind us that the success of U.S. environmental law remains incomplete. Climate change, these articles point out, is not the only environmental problem of global scale and massive if unpredictable consequence–nor the only problem that environmental law has been unable to solve. Robert Adler and Carina Wells take on the law’s failure to deal with pollution from plastics. Mark Nevitt and Robert Percival tackle the law’s feeble response to PFAS (per- and poly- fluoroalkylated substances). We who once pondered the limits to growth1 must now confront the limits to law. Or at least the limits to existing U.S. environmental laws.
The substances these articles address are overlapping sets: many plastics contain or are made with or from PFAS, although many plastics have no PFAS and many PFAS are not plastics. Not surprisingly, they share traits that have made them intractable. First, both PFAS and plastics are incredibly useful. The articles concede this utility, though both skip over it lightly–particularly Nevitt and Percival, who mainly acknowledge the function of PFAS in aqueous film-forming foam used to fight fires. Second, both PFAS and plastics are incredibly diverse. That diversity seems always to increase as industry invents new chemical structures and new products. Third, both PFAS and plastics create a frightening array of ecological and public health dangers.
The articles unsparingly describe these dangers. Adler and Wells attempt a life cycle analysis of the externalities embedded in plastics, from extraction of raw materials through production processes through product disposal. The task is far beyond the capacity of a single law review article, but even in the broad generalities they necessarily employ, their catalog is impressive. I stopped counting when my list of distinct environmental impacts described in their article reached twenty. Nevitt and Percival focus more tightly on the public health dangers of exposure to PFAS as an environmental contaminant. But their analysis too is really about a life cycle, as PFAS dispersal into the environment can occur at any point from chemical synthesis to disposal of process wastes to use and disposal of PFAS-containing products. For some uses, like firefighting, environmental dispersal is almost the point.
After describing the environmental dangers of PFAS and plastics, the articles dolefully explain how our environmental statutes have not protected us from these dangers. For PFAS pollution, Nevitt and Percival work through the failures of a half-dozen potentially useful statutes: the Safe Drinking Water Act (SDWA), the Toxic Substances Control Act (TSCA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), and the Emergency Planning and Community Right-to-Know Act (EPCRA). For pollution from plastics, Adler and Wells explore the failures of a different half-dozen: the CWA and the Clean Air Act with respect to pollution from production processes, RCRA and CERCLA with respect to waste disposal, and TSCA and the Food, Drug and Cosmetic Act (FDCA) with respect to the manufacture and use of plastics-related chemicals and food-contact substances, respectively.
Interestingly, neither pair of authors blames politics for the failure of existing law to provide adequate protection from known dangers. Instead, both articles tell a depressing story of regulatory slowness verging on paralysis, even when the intent to act seems present. The story is familiar to students of environmental law and administrative law, but the details are still arresting.
Nevitt and Percival, for example, describe the creeping pace of PFAS regulation under the Safe Drinking Water Act (SDWA). EPA in 2009 listed certain PFAS for evaluation, in 2012 required collection of monitoring data for two years, in 2016 issued a non-binding health advisory for just PFOA and PFOS (the two most notorious PFAS), in 2019 announced an intention to issue a binding maximum contaminant level (MCL) for those chemicals, and in 2021 made a final determination to do so. In 2023, too late to be included in Nevitt’s and Percival’s article, EPA published a proposed rule that would set that MCL. EPA has yet to issue a final rule.
Adler and Wells, for another example, assess EPA’s technology-based regulation of water pollution discharges by the organic chemicals, plastics, and synthetic fibers industry. They recount that EPA first promulgated these regulations in the mid-1970s, but after a successful court challenge it took EPA until 1987 to issue new rules. Those 1987 rules remain in effect. Adler and Wells note that the industry (not to mention pollution control technology) might have changed a bit since then.
Adler and Wells offer an explanation for such regulatory stagnation. Required to show that its regulations satisfy the statutory standard, forced to comply with a host of additional justificatory requirements imposed by executive order or by other statutes, mindful always of the likelihood of petitions for judicial review, EPA simply is incapable of keeping up with complexity, change and innovation in the industries it regulates. Underlying it all, they assert, is the free market approach that dominates U.S. environmental law. They observe that in order to mitigate the effects of externalities, this approach tolerates regulation of how industry produces its output and handles its waste, but not regulation of what industry produces.
Nevitt and Percival delve less into theory, but their explanation is similar. They too note the information-dense requirements of EPA’s statutory authorities. They point out that the prevailing regulatory model requires that these authorities be applied to each distinct chemical entity, one at a time. Moreover, they note that the structure of the Toxic Substances Control Act (TSCA), even as amended in 2016, leaves it to the chemical industry to develop and disclose information about the toxicity of its products. This puts EPA in the position of responding to harm caused by PFAS and other toxic chemicals instead of achieving the statute’s putative goal of preventing the harm from occurring in the first place.
In light of their devastating critiques of the efficacy of existing environmental law, the articles’ proposals for reform seem wan. Adler and Wells put their weight behind the Break Free from Plastic Pollution Act, legislation introduced in the U.S. Senate in 2023. The bill is admirably catholic in its mix of regulatory approaches and economic incentives, but even Adler and Wells acknowledge that some of these approaches would face the same constraints that have hobbled existing environmental statutes. Nevitt and Percival praise two bills introduced in 2021. The Filthy Fifty Act would have required study and remediation of PFAS contamination at select military facilities. The PFAS Action Act of 2021 would have required EPA to complete some regulatory actions, including listing PFOA and PFOS as hazardous substances under CERCLA and setting an MCL for these compounds.
None of these bills would provide a solution commensurate with the articles’ description of the challenges environmental law faces in protecting people and the planet from plastics, PFAS, and other problems of similar scale. Of course, none of them became law, either. The reality of the political moment may suggest that it is not even worth thinking about deeper reforms. But if environmental law scholars do not think that way, who will?
These articles get at something fundamental in environmental law. The law assumes that the market knows best until a regulatory agency proves otherwise. The market has given us plastics in vital medical equipment and in disposable drinking straws, PFAS in flame retardants and in fast-food wrappers. Meanwhile, regulators are on their heels, always playing catch-up. Nevitt and Percival float the idea of reversing the burden, requiring chemical manufacturers to demonstrate the relative greater need or lower toxicity of their particular PFAS product.
In concluding their articles, both pairs of authors plead for a more precautionary approach to regulating the environmental and health effects of complex and rapidly-changing groups of industrial chemicals and products. The plea is also a challenge: can we design that approach? That challenge, perhaps, is the most important contribution of these fine pieces by Adler and Wells and by Nevitt and Percival.
- Donnella H. Meadows et al., The Limits to Growth: A Report for the Club of Rome’s Project on the Predicament of Mankind (1972).
