Efforts to Regulate Plastic Pollution Likely to Increase in 2023

Recent actions by the Biden Administration and members of Congress indicate that plastic pollution will remain an area of primary focus in the coming year. Although passage of a broad standalone bill addressing plastic pollution is unlikely in the next legislative session, regulatory actions and other targeted legislation may have far-reaching implications to a wide array of U.S. economic sectors.

The Biden Administration took a significant step when it issued section 207 of Executive Order 14057 in December 2021, directing federal agencies to minimize waste, advance pollution prevention, support markets for recycled products and promote a transition to a circular economy. EO 14057’s directives resulted in numerous agency action, including the initiation of a potential rulemaking by the General Services Administration to reduce the use of single-use plastic packaging in federal procurement.

The U.S. Environmental Protection Agency continued its work on microplastics, advanced the agency’s National Recycling Strategy released last fall and issued opportunities for its solid waste infrastructure for recycling (SWIFR) grant programs in November and December 2022 pursuant to the Bipartisan Infrastructure Law. The Law provided a total of $275 million for grants from fiscal years 2022 to 2026.

Similarly, Secretary of the Interior Deb Haaland ordered the phase out of all single-use plastics products from federally managed lands by 2032. And in September 2022, the National Oceanic and Atmospheric Administration released for public comment its draft Report on Microfiber Pollution, which—when finalized—will provide Congress with an overview of microfiber pollution and outline a path for federal agencies and stakeholders to address this problem. These efforts and others, including at the state and international level, may lead to additional agency action in the plastics regulation space next year.

Congress is also active on plastics legislation. In the recently passed FY 2023 Consolidated Appropriations Act, Congress included a number of directives to federal agencies, including:

• A requirement that all agencies or offices funded by the Act coordinate with any contract food service provider to eliminate or reduce plastic waste;
• Funding for the State Department’s efforts to reduce ocean plastic pollution, and direction related to efforts to negotiate a global agreement addressing plastic pollution;
• Funding for the National Institute of Standards and Technology’s ongoing work to support the development of a circular economy;
• Direction to the U.S. Geological Survey to emphasize plastics research, including microplastics and nanoplastics research, in its environmental health strategic vision; and
• Support for the EPA’s research on plastics in water supplies, including microplastics, nanoplastics and plastic pellets.

In addition, some congressional democrats have signaled their intent to remain focused on plastic pollution. In early December 2022, for example, a group of U.S. senators and House representatives introduced the Protecting Communities from Plastics Act. Among other things, the proposed Act builds upon the Break Free From Plastic Pollution Act (BFFPPA) (introduced in 2020 and 2021 but never advanced) by establishing a national strategy to reduce the production of plastic waste, increase recycling efforts and decrease overreliance on single-use plastics across numerous sectors, all while advancing greenhouse gas emission reduction and environmental justice policies.

Like the BFFPPA, the Protecting Communities from Plastics Act would establish a moratorium on the issuance of federal and state-agency-administered Clean Air Act and Clean Water Act permits for new plastic facilities and petrochemical plants, with the exception of material recovery facilities, mechanical recycling facilities and composting facilities, and like the BFFPPA, disfavors advanced or chemical recycling. However, the Protecting Communities from Plastics Act differs from BFFPPA in that the 2022 bill places a greater emphasis on environmental justice. In addition to the permitting moratorium, for instance, the bill also requires the EPA to promulgate rules directing permittees to state how a proposed petrochemical, plastic production or waste incineration operation or expansion would impact surrounding fenceline and environmental justice communities.

The introduction of the Protecting Communities from Plastics Act so late in this congressional session suggests that the bill’s sponsors are likely to reintroduce it early in the next session. And although a divided Congress may be hard pressed to pass the Act as a stand-alone bill, sponsors may look for opportunities to work parts of the bill—particularly those for which there is bipartisan support—into broader legislative packages.

The Senate Environment and Public Works Committee hearing on plastics, held on December 15, 2022, also shows that supporters of plastic regulation will continue to devote attention to this issue. The subject of plastic-related chemicals suspected by some to have endocrine disrupting properties (e.g., phthalates) was discussed extensively at the hearing, along with the unknown potential for health impacts related to microplastics. These discussions reflect a broader trend on the issue of plastic waste, as concerns have expanded from the leakage of plastic into the environment to the potential health and ecosystem impacts of plastics.

These topics are likely to receive continuing scrutiny from Congress—and from federal agencies—in 2023, and may be the subject of standalone legislation, riders to larger bills, hearings and regulatory action. The hearing also reflects the fact that advanced or chemical recycling, which many advocate as a major element in the creation of a circular economy, remains a partisan issue.