The Plastic Treaty Negotiations from a Delegate’s Perspective

As part of a resolution adopted by the United Nations Environment Assembly (UNEA) in 2022, negotiators are seeking to develop an international legally binding instrument to end plastic pollution. In October 2022, the column “Recent Plastic Policy Initiatives and Opportunities for ChEs” discussed what led up to the negotiations (CEP, p. 48).

Toward developing this treaty, authors Mary Ellen Ternes and Jeffrey Seay recently participated in the third session of the Intergovernmental Negotiating Committee (INC-3), Nov. 13–19, 2023, in Nairobi, Kenya. Ternes, Seay, and Tracy Hester serve as observer delegates to the plastic treaty negotiations on behalf of the nongovernmental organization Global Council for Science and the Environment (GCSE). The authors’ insights into the prospective treaty and processes may be valuable for other chemical engineers as professionals and as citizens.

Background

The solution to the issue of plastic waste is often framed in terms of recycling, with industry advocates arguing that the solution to plastic pollution is more-efficient recycling. Currently, less than 10% of post-consumer plastic waste is recycled (not considering uncollectable microplastic shed during product use). Although society could certainly do better, recycling is, unfortunately, a more complex problem than often realized. Plastics are more than just polymers — they are complex formulations of polymers in addition to additives intended to modify properties and ease production. Numerous formulations (currently, there are more than 70,000 on the market) greatly confound the recycling process, leading to limited market outlets for recycled plastic. When also considering sorting and transportation issues, the difficulty of the problem becomes clear. There is an urgent need for reducing and simplifying the universe of plastic formulations and the multitude of additives used. Plastic simplification, designing for safety and circularity, and alternatives to plastic — along with safe and sustainable chemical processes to manage plastic post-use fate — all present opportunities for the chemical engineering community. The global plastic treaty negotiations arose from the UNEA resolution 5/14, which was adopted May 10, 2022. The resolution followed years of press coverage regarding the Great Pacific Garbage Patch; China’s 2017 “Operation National Sword” rejecting any further imports of plastic waste upon recognizing it has no recoverable value; the powerful National Geographic 2018 effort “Planet or Plastic;” and the May 10, 2019 amendments to the Basel Convention listing nonconforming plastic waste as hazardous waste. Although global concerns regarding plastic pollution were initially spurred by disturbing images of ocean litter, they now incorporate the entire plastic value chain, toxicity of plastic, chemical additives, microplastic particles (less than 5 mm) and nanoparticles (less than 100 nm), releases of particles and chemicals during use and in the environment, the need for production caps, and challenges to regulation and recovery. The goals for addressing plastic pollution are now comprehensive, including all pollution throughout the plastic value chain, from initial carbon production (fossil or renewable) through to product distribution, use, and ultimate fate, including continued use, reuse, recycling, recovery, destruction, or disposal through sequestration in landfills or use constituting disposal, such as use in road construction.

The INC negotiations

The first negotiating session was INC-1, held in November 2022 in Punta del Este, Uruguay, with over 2,300 delegates from 160 countries and stakeholder groups. We, the authors, attended INC-1 virtually. Consensus included recognition of the scope of the ubiquitous environmental impacts of plastic pollution from both land and ocean sources, as well as the critical need to act quickly. Three themes that emerged were foundations in the precautionary principle (allowing evidence of the potential for harm to support policy before conclusive evidence of actual harm), “polluter pays,” and fairness in implementation. Also apparent was a sharp divergence between nations most economically reliant on plastic, such as the rising economic powers of Brazil, Russia, India, and China, vs. nations with high ambitions for the treaty, especially emerging nations disproportionately burdened by plastic waste. Six months later in Paris, INC-2 found the first set of nations earnestly staking out objections to any challenge to the plastic production status quo, often stating, “Plastic is not the problem.” They favored reliance on plastic recycling to support continued acceleration of plastic production while denying any harm from chemical additives and microplastic particles. The more ambitious nations instead sought to cap plastic production and to ban unnecessary uses and problematic polymers and chemicals. Further, they relied on more-recent research regarding harm from microplastic shedding during plastic use and from plastic waste in the environment. Procedural objections by the producers vs. the burdened states hampered collective progress at INC-2. Despite this, provisions of an initial “Zero Draft” treaty were developed based on the submittals from INC-2, as well as potential elements established at INC-1.

At the INC-3 in Nairobi, delegates responded to this Zero Draft treaty and to a summary of the issues being considered. Plastic producer nations preferred Zero Draft aspirational “best efforts” options to minimize production and chemicals, while burdened nations argued for options mandating production caps (i.e., “members shall not exceed”) along with polymer and chemical bans, provisions addressing microplastic releases, and design and transparency requirements. Neither side appeared to sway opposing viewpoints.

Possible impact of litigation

Ongoing lawsuits in the U.S. could cause businesses to reevaluate their business models, given possible litigation risks that could impact their economic outlook and investor confidence. While the U.S. currently lacks adequate plastics legislative authority, the U.S. legal system, including state litigation, has historically served to remedy harms resulting from a lack of pollutant regulation. Such litigation often drives businesses to support legislation to provide a stable “safe harbor” for prospective operations and investment. Historically, such litigation has also driven regulation of many pollutants.

Recent plastic litigation includes the Nov. 15, 2023, New York Attorney General’s lawsuit against PepsiCo for plastic pollution along the Buffalo River. This lawsuit is seeking studies, remediation, a relief fund, and disgorgement of profits from behavior resulting in the plastic pollution. Although somewhat similar to the Earth Island Institute’s 2020 California lawsuit against Crystal Geyser Water Co. et al., the New York lawsuit is unique in that it was filed by a state attorney general and seeks comprehensive retroactive and prospective relief, including creating a fund for future remediation and disgorgement of profits from alleged illegal past behavior. (Follow these cases at .)

The analysis of Wieland et al. in Ref. 1 makes a strong case for the toxicity of microplastics and draws parallels with other airborne pollutants including asbestos. Micro- and nanoplastic particle shedding of sharp-edged particles may pose similar hazards to asbestos, whose easily released fiber needles and persistent sharp-edged particles are considered persistent, bioaccumulative, and toxic (PBT), and are linked to mesothelioma and other diseases. Widespread ambient exposure to asbestos stemmed from the ubiquitous use of the unregulated nondegradable material in a multitude of products, from insulation to children’s toys to cigarette filters. Production grew to about 5 million m.t. by the 1970s. When the industry became overwhelmed by asbestos-worker health litigation, production collapsed and the involved businesses eventually declared bankruptcy.

For a more recent example, consider another class of pollutants: per- and polyfluoroalkyl substances (PFAS). PFAS include similarly ubiquitous industrial chemicals, often used as plastic additives, that are now being recognized for their potential for harm. The litigation histories of both asbestos and PFAS should serve as lessons for plastic producers; litigation, industry collapse, bankruptcies, and belated regulation may be in the near future. These well-known examples should cause corporations to reevaluate their material risk from relying on plastics, which, for publicly held companies, may trigger reporting to the U.S. Securities and Exchange Commission. Litigation involving pollutants also causes insurance underwriters to consider business risk and adopt responsive exclusionary provisions in insurance policies. These fundamental shifts can cause concern among investors, prompting changes to business models ahead of legislation and ahead of an international treaty. Because so many companies in the plastic value chain are based in the U.S., plastic litigation in the U.S. may have an international impact on the plastic equation. This impact could engender more producer-nation support for treaty provisions that address harm from plastic pollution, potentially breaking the negotiation logjam.

Perspectives

As chemical engineers and attorneys, we (the authors) generally see the producer nations’ positions as avoiding environmental science and accountability for harm. We see economic-preservation concerns resulting in deafness to the pleas for planet- and population-saving plastic pollution relief. Failing to address harm may eventually lead to material risk to the responsible businesses where there are legal avenues to address such harm. This material risk can result in failed markets and business failures. With the New York litigation discussed above, similar issues are now posing material risks for businesses producing or otherwise relying on plastic. Litigation has been filed to recover compensation for harm caused by companies identified as responsible for plastic products that have become environmental pollutants, including micro- and nanoplastics. For these reasons, plastic-reliant businesses already have sufficient cause to evaluate their exposure to material risk and consider alternative business models. Consistent with this observation, we contend that these businesses should support an agreement between producer and burdened nations that objectively addresses plastic and plastic pollution, mitigating sources and addressing the potential for harm, as these dynamics continue to be influenced by ongoing and future litigation in the U.S. We will provide an update of these issues following INC-4 in Ottawa, Canada, in April 2024. Meanwhile, you can find more details and follow the INC process yourself at .
  1. Wieland, S., et al., “From Properties to Toxicity: Comparing Microplastics to Other Airborne Microparticles,” Journal of Hazardous Materials, 428, 128151 (Apr. 15, 2022).

Mary Ellen Ternes, Jeffrey Seay, and Tracy Hester are observer delegates to the current INC plastic treaty negotiations as Fellows of the Global Council for Science and the Environment (GCSE). Both Ternes and Seay are AIChE Fellows. Hester is Fellow and 2024 President of the American College of Environmental Lawyers, while Ternes is Fellow and 2020 President.

This article originally appeared in the ChE in Context column in the January 2024 issue of CEP. Members have access online to complete issues, including a vast, searchable archive of back-issues found at www.fontelearn.com/cep.