Late last month, the New York Supreme Court granted a request from PepsiCo dismissed a lawsuit over plastic pollution brought against it by the state’s attorney general, Letitia James.
The complaint, which sought civil penalties against the food and beverage corporation for causing plastic pollution in the Buffalo River, was “predatory,” according to the decision written by Judge Emilio Colaiacovo. He accused James’ office of making “phantom claims of accountability that do nothing to solve the problem”.
PepsiCo “did not pollute the Buffalo River or any other local waterways,” Colaiacovo wrote. “Other people have!”
That unusually emphatic dismissal raises questions about similar lawsuits pending across the country — as well as the prospect of future litigation to hold companies accountable for the plastic pollution generated by their products. Just one day before Colaiacovo’s decision was released, Los Angeles County filed a similar complaint against PepsiCo and Coca-Cola, arguing that the companies harmed public health and misled consumers about the effectiveness of plastic recycling. The city of Baltimore filed his own suit against PepsiCo, Coca-Cola, Frito Lay and plastics manufacturing companies, and two lawsuits in California — one from the state attorney general’s office and one from a coalition of environmental nonprofits — claims that Exxon Mobil promotes plastic recycling despite the knowledge that it would not be able to keep up with waste generation.
But several attorneys Grist spoke with — and James’ office — said they weren’t concerned. Jill Heaps, senior legal director for the nonprofit organization Surfrider, said Colaicovo’s firing is “disappointing,” but she expects it to be overturned on appeal. “I don’t think it has any negative ramifications for the litigation going on in California or elsewhere.”
Each year the US produces 73 million metric tons of plastic waste, and approx 95 percent of it is not recycled – not just because the US lacks adequate recycling infrastructure, but because of inherent properties of the material itself. All that non-recycled plastic ends up being incinerated or sent to a landfill, or else it becomes litter in the natural environment, where it breaks into tiny fragments called microplastics. Scientists have found these fragments in virtually every environment they have studied, and in the bodies of hundreds of animal species. In humans, they have linked microplastics to healthcare, including metabolic disorders and a increased risk of heart attack.
The premise of the New York lawsuit and others like it that large manufacturers of plastic products should not just wash their hands of this impact and blame consumers for improperly disposing of their products. In the opinion of prosecutors and environmental groups, companies should be financially responsible for managing the pollution they generate.
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James’ lawsuit was the first brought by a state against a major plastic polluter. In her complaintfiled last year, James described PepsiCo’s trash as a “persistent and dangerous form of plastic pollution.” Her first legal claim against the company was that it created a “public nuisance” for residents of the Buffalo River watershed. It was based on s 2022 survey of all types of waste along the river, which found that the majority of the waste was plastic and that the biggest contributor to that plastic was PepsiCo. The company’s plastic waste was identified three times more often than that of the second largest contributor.
The complaint’s other claim concerns consumer protection law: Although PepsiCo has “long been aware” of the environmental and human health risks posed by single-use plastics, James’ office said PepsiCo has concealed these risks in its communications to the public, in part by promoting plastic recycling .
Colaiacovo rejected both of the lawsuit’s claims. He said James “failed to provide any evidence” that PepsiCo knew its plastic packaging would become pollution, and appeared to agree with PepsiCo that it should not be held liable for what happens to its plastic packaging after consumers are done with it. He characterized James’ arguments as a slippery slope that could eventually allow litigation against any company, as long as the plaintiff could construct a conceivable scenario linking an unwanted action to a product it makes.
Plastic pollution “is a purely legislative or executive function to ameliorate,” he wrote, calling the lawsuit “policy idealism.”
Heaps, whose organization is part of the coalition that recently sued Exxon Mobil in California, said Colaiacovo should not have dismissed the case so early. “The judge’s job in a motion to dismiss is to give all the presumptions in favor of the plaintiff,” she said — “to ask, ‘Is it possible to make this argument?'” and then to allow the claimant to adduce additional evidence to do so. That’s what happened with a similar consumer protection lawsuit filed by the nonprofit Earth Island Institute against Coca-Cola. In August, an appeals court in Washington, DC, said that Earth Island’s claims were “face-acceptable” and that it should have a chance to further vindicate them in the DC Supreme Court.
Additionally, Heaps noted some other oddities in Colaiacovo’s dismissal, which begins with a statement that the product in question must be “defective or illegal” to make a public nuisance claim viable.
“I don’t know where he made it up,” she said. “I have never seen this in any case law.”
Tyson Redenbarger, a civil litigation attorney at the firm Cotchett, Pitre, & McCarthy LLP – which represents the California nonprofits in their plastics lawsuit against Exxon Mobil — agreed. To justify a public nuisance claim, a product or practice must violate public health, morals, amenity, or other general rights. Redenbarger listed a number of legal products that were found to cause a public nuisance, such as lead paint sold before 1978which contributed to widespread health issues. “Defendants always argue, ‘Oh, my product is legal, and I’m selling it all over the state,'” he said. “But that’s not the standard for nuisance.”
Roberto Machado Noa/LightRocket via Getty Images
Heaps also called out the decision’s unusually emotional tone — marked, for example, by the use of an exclamation point when describing consumers’ responsibility for waste generation, not PepsiCo’s. She said it was “very unusual” to see an exclamation in legal documents: “I was like, ‘What law clerk wrote that?’
In a statement to Grist, PepsiCo said it was pleased with the layoff and that it “remains serious about plastic reduction and effective recycling.
“We will continue to work with key partners to promote smart material collection policies, improve recycling infrastructure, promote consumer awareness of the importance of recycling and establish partnerships focused on reducing waste and exploring innovative solutions to plastic pollution,” the company’s vice president of global corporate communications, Andrea Foote.
Earlier this year, PepsiCo company said it probably would miss a self-imposed deadline to make 100 percent of its packaging recyclable, compostable, biodegradable or reusable by 2025. Its most recent sustainability update reported a 6 percent increase in the use of virgin plastic, against the company’s goal of reducing it by one fifth to be reduced by the end of the decade.
Sumona Majumdar, the Earth Island Institute’s CEO, said she doesn’t think the New York state case was a fluke. Her organization’s DC lawsuit has already demonstrated the plausibility of plastic pollution-related consumer protection claims, and a separate lawsuit brought by the Earth Island Institute in California recently be allowed to proceed with public nuisance claims against Coca-Cola, PepsiCo and major consumer goods companies.
Sara Gross, Chief of the Affirmative Litigation Division for the City of Baltimore, represents Baltimore in its public nuisance and consumer protection lawsuit against Coca-Cola, PepsiCo, Frito Lay and major plastic manufacturers. “We respectfully disagree with the New York judge and intend to move forward with our case,” she told Grist.
A spokesman for the New York attorney general’s office declined to say whether James would appeal to an appeals court, but they opposed characterizing their lawsuit as a kind of fishing expedition — seeking to “punish lying while looking for a crime,” as Colaiacovo puts it.
“This legal theory is growing, … others are pursuing it, and this one decision is certainly not going to be the be-all, end-all,” the spokesperson said. “We would not have taken the steps to file a lawsuit if we did not believe the legal argument had merit.”
