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OCEANS, PLASTICS AND THE LAW

On 18 July 2017, China advised the WTO that with effect from 1 January 2018 it would ban the import for recycling of 24 categories of “yang laji” or “foreign garbage”, including many forms of plastic.  The Chinese action is in the context of its “National Sword” initiative, which has also resulted in the rejection and return of shipments of contaminated paper from Ireland, and other waste imports that do not meet its enhanced standards.

Erik Solheim, Head of the United Nations Environment Programme, remarked –

“We should see the Chinese decision – I heard some complaints from Europeans – as a great service to the people of China and a wake-up call to the rest of the world… and there are lots of products we simply don’t need…”

However, while the ban is causing major problems for the US recycling industry, it is also creating a boom time for new plastics manufacture, and exports of new plastic to China, with companies such as DowDuPont Inc and Chevron Phillips Chemical Co opening new plant to cope with surging demand.

The Chinese ban has precipitated a short term crisis for many countries, including Britain, which has been exporting 500,000 tonnes of plastic to China every year for recycling, but also right across the European Union, United States and many other countries. In Britain, the dramatic effects of the plastic ban have come together with a unique level of public concern about the impacts of plastics on the ocean environment and the wildlife dependent on it, as viewing figures for the documentary Blue Planet II exceeded 14 million.

All the more credit to those giving earlier warnings about the critical effects of plastic pollution. The Ellen Macarthur Foundation and World Economic Forum produced a report in 2016 pointing out that most plastic packaging was only used once, that 95% of its value, worth $80-$120 billion annually, is lost to the economy, and that on a business as usual scenario, by 2050 the plastics industry will consume 20% of total oil production, and oceans will contain more plastic than fish (by weight).

The issue of plastic is on one level a stark illustration of the wastage of resources in the way we live. It is also a pressing issue of pollution that is getting significantly worse. Finally the health effects of plastic pollution carrying diseases, entering the food chain by being ingested by marine life or affecting human health directly are coming under increasing scrutiny, including a new review of health risks from microplastics in drinking water announced by the World Health Organisation. This article suggests that the policy and legal responses to these issues has taken something of a scattergun approach, with a need for international consensus and effective action to address key sources of marine plastic such as major river systems, and more coordination and shared goals.

The new Foresight Future of the Sea report from the UK government’s Chief Scientific Adviser is therefore a timely and welcome addition to the understanding of the issues. This report states that without intervention, plastic pollution in the oceans could treble between 2015 and 2025.  It notes the damaging effects of such pollution on marine life. The report recommends policies which concentrate on preventing plastic from entering the sea, introducing new biodegradable plastics, and public awareness campaigns about marine protection. The Foresight Future of the Sea report also notes that developments of the law, internationally, nationally and at devolved legislature level, will be one part of the answer –

Law and enforcement. Domestic and international law is crucial for delivering the UK’s marine and maritime interests. At an expert stakeholder workshop held at Chatham House, there was strong agreement that without effective, strong and up-to-date laws and governing mechanisms, all other activities are compromised.

International treaties and organisations. The UK has an active role in many of the organisations and treaties that underpin global marine governance. The UK is party to the UN Convention on the Law of the Sea, and has observer status on the Arctic Council. The International Maritime Organization is also based in London. The outcome of international legal agreements will be critical to the nature of future resource use.

A significant amount of marine policy is devolved. Although this report’s primary purpose is to inform the UK government, we recognise the importance of collaboration with the devolved administrations to deliver many of its recommendations. “

It has been suggested in one study that as much as 88-95% of the total global load of plastics has its origin in the top 10 polluting rivers in the world, led by the Yangtze in China and the Ganges in India. If true, this would offer intriguing possibilities for more effective regulation based around catchment management. However, a report from CIWM and WasteAid UK on 22 March 2018 has qualified this widely reported statistic and set it in context. The CIWM/WasteAid UK report states that more than 90% of marine plastics comes from land-based sources: 4-12 million tonnes is estimated to come from mismanaged solid wastes generated with 50km of coasts, of which more than 50% comes from five east Asia countries, with 0.4-4 million tonnes from rivers, 90% of that from 10 major rivers. Overall, CIWM and WasteAid UK estimate that mismanaged municipal solid waste in developing countries probably accounts for 50-70% by weight of the plastics entering the oceans, and by way of further context, they point out that 2 billion people live without waste collection and 3 billion people without controlled waste disposal, so they see this as a major issue for future development aid policy.

Other studies suggest that plastic pollution may be far more widely dispersed than was previously understood. A study of 40 sites in northwestern England found microplastic pollution to be “pervasive on all river beds” and at far higher levels than expected.

However, reports on a further study conducted for Orb Media by the University of New York in Fredonia indicated that of 250 plastic bottles of water from different brands bought in 9 different countries, 93% had microplastic contamination. This has prompted the World Health Organisation in March 2018 to announce a review into potential human health risks of plastic in drinking water.

Some policy and legal responses

The responses of different governments to the unique combination of public concern and Chinese import bans have been instructive about their contrasting approaches on environmental issues.

United Kingdom

In the UK, Prime Minister Theresa May in a speech on 11 March 2018 referred to the UK’s ban on plastic microbeads, in cosmetics and personal care products, which came into force in January 2018. She noted that the small charge on plastic bags in supermarkets had led to a reduction of 9 billion in the number of single use bags, and promised to extend the 5p charge to all retailers. She urged the establishment of plastic free aisles in supermarkets, and issued a call for evidence on the effect of taxes and charges. The UK’s 25 year plan for the environment, which the Prime Minister was introducing and defending, sets targets for zero avoidable waste by 2050, and zero avoidable plastic waste by 2042: but it stopped short of considering a deposit return scheme for plastic bottles. The UK government has also promised to publish a Resources and Waste Strategy, but the expected publication date has been delayed to the second half of 2018. On 28 March 2018, Defra made a further announcement that it would in 2018 consult on a deposit return scheme for single use drinks containers (plastic, glass or metal).

In the UK, responsibility for the environment is a devolved matter, so the Parliaments of the different countries within the UK have adopted their own distinctive policy measures and targets.

In Scotland, the government claimed on 11 January 2018 to be the first UK country to ban plastic cotton buds, and it announced its own plans for a deposit return scheme on plastic bottles.  On 20 January 2018 the Scottish government pledged to match the EU ban on single use plastic by 2030 ‘Brexit or no Brexit’. On 12 February 2018 it announced a further ban on plastic straws by the end of 2019.

In Wales, the government announced on 28 September 2017 that it would consider a deposit return scheme for plastic bottles ‘in 2018 or 2019’ . On 17 October 2017 it issued its own ‘Plastic Route Map’. On 13 February 2018 it announced that it was considering a disposable plastics tax.

While there is no doubt some creative energy in this competitive drive to initiate distinctive laws and regulations on different kinds of plastics and plastic products, it could make the UK a difficult place in which to do business unless the UK government and those of its national countries put corresponding energy into making a reality of the ‘common frameworks’ that have come under increasing strain throughout the passage of the main Brexit legislation. In its multi-layered responses to the plastics issue, the UK has also reflected some of the centrifugal effects of leaving the European Union.

European Union

The EU meanwhile issued its own Strategy for Plastics in January 2018.  This would require that all plastic packaging on the EU market be recyclable by 2030. Consumption of single use plastics would be reduced. ‘Intentional’ use of microplastics would be restricted.  A further legislative proposal on single use plastics is expected later in 2018. The Strategy also introduces a proposal for a Port Reception Facilities Directive.

However, the main thrust of the EU response to the plastics issue would be through the EU Action Plan for the Circular Economy, where legislative proposals have been adopted but not yet agreed. This envisages proposed targets of 65% recycling for Municipal Waste and 75% recycling of packaging waste, both by 2030. It remains to be confirmed whether the UK will adopt measures aligned to the EU Action Plan for the Circular Economy as it prepares for Brexit. At the moment it seems more likely than not that it will do so, if only to avoid the trade complications of significant divergence from major EU environmental legislation.

United States

In America too, different States have strongly contrasting approaches to each part of the plastics issue. For example, California, Hawaii, the District of Columbia, New York, Maine and Delaware all have some variation of selective bans on single use plastic bags. However, States including Michigan, Idaho, Arizona and Missouri have enacted legislation outlawing such bans or charges for bags in lower legislatures. Twenty one US States are reported to have plastic PET bottle deposit and return schemes in operation. But as noted, in industry too there are strongly contrasting effects from the Chinese ban on recycled plastics, as recycling businesses struggle to adjust, while manufacturers of new plastic report surging growth.

Problem, or opportunity?

Consideration of plastic pollution as simply a problem should not obscure some of the ways in which technical solutions can bring real benefits. For example, research undertaken at the University of Bath and the Government Polytechnic in Goa addresses environmental concerns arising from the over-dredging of sand, which have led to restrictions on sand extraction across India. This research suggests that concrete made with a proportion of recycled plastic waste instead of sand can bring double benefits –

“The results show that replacing 10% sand by volume with recycled plastic is a viable proposition that has the potential to save 820 million tonnes of sand every year.”

Oxford University recently announced a new spinout company, Oxford Sustainable Fuels  which is “founded on technology that can turn waste from plastics, tyres and biomass into high quality transportation fuels and chemicals.”

 

Conclusion

There is something surreal about the unsustainable use of plastics across the world. Vast numbers of consumers throw away single use plastic products, which either end up in landfill, or have to date been transported across the world for recycling in China. Microplastics and plastic pollution are pervasive in our river sediments and our oceans, with significantly damaging effects on marine life, and increasingly significant risks to human health. Huge amounts of plastic debris end up in rivers such as the Yangtze, or in mismanaged solid wastes in coastal areas, on its way back to sea. And while the Chinese government has introduced drastic new measures to limit the importation of used plastic from abroad for recycling, it has also mandated the use instead of clean, new plastic. This in turn has resulted in some American companies spending hundreds of millions of dollars to produce new plastic, in completely new plant, so that it can be sent, once again, round the world to continue the cycle: a different kind of Circular Economy.

We need policies and laws to address these issues, at the international, national, regional and devolved levels, preferably in ways that are coordinated and complementary rather than in competition for its own sake. Public opinion needs to remain focussed on the environmental and health effects of plastic pollution in rivers and oceans.

The policies and laws need to mandate using less plastic where its uses waste resources; to discourage single use plastic products; to encourage the return and recycling of plastic bottles; to prevent and restrict plastic pollution from reaching rivers and oceans; and to encourage the technical development of genuinely biodegradable plastics.

 

WaterWilliam Wilson