Litigation related to plastics and microplastic pollution is on the rise. Plaintiffs have brought claims under numerous theories of liability. The state of New York’s common law nuisance claims against PepsiCo were recently met with disdain. The court summarily dismissed New York’s case calling it a “predatory lawsuit” that without a statutory claim was “simply policy idealism.” Some parties have raised the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) as a statute to regulate microplastics. But is CERCLA really applicable to microplastics?

What Are Microplastics?


Jeffrey Talbert.
Courtesy Photo

Microplastics are pieces of plastic smaller than five millimeters; some define plastics ranging in size from one micrometer to five millimeters as “microplastics” and plastics ranging in size from one nanometer to one micrometer as “nanoplastics.” They may be created and used intentionally or may be formed when waste plastic degrades and fragments into tiny pieces. Microplastic pollution, which is frequently characterized as “ubiquitous,” can be found in marine and fresh water, soil, and air.