Regulation on plastic pollution

Due to the overwhelming attention for plastic pollution, we have seen a surge in regulation and policy in the past five years. The European Union has put a ban on certain plastic items, while targets have been set for plastic recycling. Microplastics are to be phased out in cosmetics in France and soon also in the EU. Furthermore, most countries have rules prohibiting littering in general. Despite the rules, plastic pollution is increasing. Proper enforcement could be a first step in making regulation more effective.

Implementing regulation and its loopholes

In 2019, the EU adopted the Single-Use Plastic (SUP) Directive. This regulation contains several measures to prevent and reduce the impact of single-use plastics on the environment. For the ten items found most on European beaches, measures have been taken such as completely banning plastic straws and cutlery, while for other items extended producer responsibility (EPR) has been imposed. This means that producers have to take care of the afterlife of products or have to contribute to their waste management.

The EU Member States are now implementing the SUP Directive, and the Netherlands has done this in the Besluit kunststofproducten voor eenmalig gebruik of 17 June 2021. Unfortunately, there are certain loopholes that can easily be used. One example is related to plastic cutlery. The restaurant of Leiden University has phased out plastic cutlery, as demanded by the SUP Directive. But for take-away food, slightly firmer plastic cutlery with the text ‘reusable’ is still available. However, most, if not all, of this plastic reusable cutlery is disposed of immediately after use, thereby simply circumventing the ban.

Furthermore, there is also regulation that is hardly enforced. In the Netherlands the fine for littering is €140, yet plastic cigarette butts are everywhere on the streets. Construction sites are often a source of styrofoam pollution, but there is no authority that systematically addresses this kind of pollution. We argue that there is a lot to win by proper and effective enforcement. NGOs and civilians can be instrumental in this.

Enforcement by administrative law

In the Netherlands, enforcement by administrative law is a course of action for both NGOs and citizens. First, a complaint can be filed with the municipal authorities or the regional environmental enforcement agency. Second, if these authorities are not willing to take action upon the complaint, it is possible to make an enforcement request. In the case of NGOs and citizens, they have to be an injured or directly interested party (a belanghebbende within the meaning of Art. 1:2 of the Dutch General Administrative Law Act (Awb)), as both public and private nuisance are covered. So the neighbour of a coffee-to-go shop who is confronted with plastic coffee cups in their garden, could qualify and initiate proceedings. Also, enforcement can be invoked for a violation of a permit to operate a facility. The NGO Mobilisation for the Environment has made numerous objections against operating and environmental permits of farms for not complying with the nitrogen regulations. These procedures have led to the decision of the European Court of Justice (ECLI:EU:2018:882) that the Dutch nitrogen regulation was not in compliance with the EU Habitats Directive and that environmental pollution by nitrogen should be tackled more stringently. Many other NGOs are also addressing environmental problems via lawsuits – for example, oil pollution in Nigeria by Shell, and climate change in the famous case of Urgenda. In these cases a civil – tort – procedure was started, but it illustrates the trend of litigation for environmental goals. Through litigation, NGOs have additional means for achieving their objectives. The advantage of an administrative law case in comparison with a civil law case is that the costs of litigation are much lower, as there is no mandatory legal representation and court fees are lower.

Case study: Plastic nurdle pollution by Ducor

In the port of Rotterdam, plastic nurdles – pieces of plastic for manufacturing – were found which were thought to be released by plastic producer Ducor Petrochemicals. In 2020, the Plastic Soup Foundation (PSF) submitted an enforcement request to the regional environmental enforcement agency (DCMR) to make Ducor clean up its site and prevent further pollution. As required by law, PSF has a direct interest in enforcing the rules as its statutory objective is ‘to reduce the plastic soup’. DCMR discovered how heavily the area around the Ducor factory was polluted with nurdles and called on Ducor to take measures. By not keeping its site clean, Ducor had violated multiple environmental related regulations, including Article 3.32 of the Activity Decree (Activiteitenbesluit), Article 13 of the Soil Protection Act (Wet Bodembescherming) and Article 10.1 of the Environmental Protection Act (Wet Milieubeheer). Future violations were foreseen to be penalised by €15,000 per violation detected. In the appeal case, the penalty was cancelled because the order was not specific enough (ECLI:NL:RVS:2020:1779). The order demanded that Ducor take ‘appropriate measures’, but according to the Raad van State (Council of State, the highest court of appeal in administrative matters) this was an open norm which needed specification. This means that enforcement orders should clearly describe the remedial measures, a clear message for enforcement authorities. PSF announced that this is a first step in addressing producers of plastic pollution, in the hope that they will take responsibility in this problem.

Conclusion

NGOs and citizens may alert and activate enforcement authorities to take action towards offenders of environmental regulations. Administrative law allows NGOs and citizens to address environmental pollution in a relatively easy and cheap way. They can play an important role in achieving proper and effective enforcement of regulation of plastic pollution, thereby contributing to the reduction of plastic pollution.