12 Redressing the Faustian Bargains of Plastics Economies

Every plastic item ever made remains in existence in some form or another and will continue to act on environments for millennia. The history of the base ingredient of plastics (petroleum) stretches back to previous geological epochs, and its legacy will outlive us all. Scientific journals and the popular press continually reveal new places that have been invaded by microplastics, including the air that we breathe (Yurtsever, Kaya, and Bayraktar 2018); our tap water (Rochman et al. 2013); store-bought sea salt (Karami et al. 2017); bottled water (Mason, Welch, and Neratko 2018); soil (Hahladakis et al. 2017); earthworms (Lwanga et al. 2016); and the intestines and tissue of marine life throughout the food chain (Katsnelson 2015). Additionally, new research frequently reveals more unknown risks (“known unknowns”; Randall 2011) associated with plastics pollution. One of the least understood harms associated with microplastics involves their entanglements with EDCs.

Many consumer plastics contain EDCs that can migrate as residual monomers (e.g., bisphenol A) or additives (e.g., phthalates) that mimic hormones and can interfere with any system in the body controlled by hormones, including cardiovascular, developmental, metabolic, and reproductive systems (Schug et al. 2011). Some POPs are also EDCs and “toxic chemicals that adversely affect human health and the environment around the world. Because they can be transported by wind and water, most POPs generated in one country can and do affect people and wildlife far from where they are used and released. They persist for long periods of time in the environment and can accumulate and pass from one species to the next through the food chain” (EPA 2017).

EDCs leach from plastics, and the POPs that adsorb to micro- and nanoplastic fragments can be taken up into the food chain, where they can bioaccumulate in tissue and biomagnify up the chain (Bakir, Rowland, and Thompson 2014; Guerranti et al. 2017; Jamieson et al. 2017). According to Managing Director of the Food Packaging Forum Foundation, Jane Muncke (2013), the first two studies demonstrate clearly that microplastic contaminants are enriched in the human food chain were conducted by Chelsea Rochman and her team and Mark Browne and his colleagues in 2013.

Entanglements among plastics, EDCs, POPs, and organisms involve lesser-known risks because of the complex ways in which EDCs act. In 2012, the European Commission called for a “state of the art” assessment of EDCs that resulted in the Kortenkamp Report, which warned that “there is no such thing as a universal, ready-to-use detection kit for EDCs. The reason is that the hormonal system is extremely complex and EDCs can hijack it in many different—and largely unknown—ways” (Horel 2015, 5). This admission of the uncertainty of establishing safe limits to the harms associated with EDCs makes the growing volumes of nanoplastics in the environment extremely concerning. Microplastics and nanoplastics can be taken up by an organism’s cells. Some researchers refer to nanoplastics as a Trojan horse:

It is possible that nano-plastics pose a greater chemical risk than microplastics due to their larger surface-volume ratio. … Due to the absence of knowledge on nano-plastic exposure to humans, their potential chemical risk, especially after translocation into tissues and cells remains a “black box.” It is possible that these internalized and/or encapsulated particles would deliver plastic-associated POPs and additive chemicals to different tissue types and locations than those resulting from uptake from food and water (UNEP 2016, 105).

Despite the element of “known unknowns” associated with EDC science, a sharp spike in EDC studies over the past fifteen years has resulted in an overall weight of evidence that EDCs indisputably threaten life. In 2006, thirty specialists concluded that “BPA [bisphenol A] at concentrations found in the human body is associated with organizational changes in the prostate, breast, testis, mammary glands, body size, brain structure and chemistry, and behaviour of laboratory animals” (Vom Saal et al. 2007, 134; see also Shaw, Balakrishnan, and Mitchell 2009). The Environmental Working Group’s list of over 100 peer-reviewed studies states that BPA, a common EDC used in the production of consumer plastics, is toxic at extremely low doses (Environment Working Group 2013).

An article and an editorial in Endocrinology highlight the need for more transdisciplinary research to explore the full extent of risks posed by EDCs: “This community of experts has formed a united front to state the undeniable: that EDCs pose a threat to human health and to the ecosystems of the earth” (Gore 2013, 3955). Since Louis Guillette Jr. and his colleagues (1994) first attributed EDC exposure to the decreasing sizes of alligator penises in some of Florida’s lakes, numerous other studies have highlighted the impacts of EDC exposure on wildlife. Their findings include sexual disruption of fish, decreased fish populations (Ingre-Khans, Ågerstrand, and Rudén 2017; Kidd et al. 2007), and “reduced feeding and reproductive success, reduced survival, cellular-level toxicity, changes in immune function, changes in enzyme function, and gene expression” (Worm et al. 2017, 13).

Post-normal science (PNS) is the application of science in which “facts [are] uncertain, values in dispute, stakes high and decisions urgent” (Funtowicz and Ravetz 1992, 254). EDCs and climate change are two of the most frequently cited examples of PNS. Aspects of plastics-EDC entanglements represent similarly uncertain and contested bodies of knowledge. Because of the unpredictability of microplastics entanglements, we support a PNS approach that acknowledges the limits of our understandings of plastics production, consumption, and disposal and therefore requires the adoption of a precautionary approach. The principle asserts that, “when an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically” (Raffensperger and Tickner 1999, 354). The precautionary principle emerged out of criticisms of traditional risk assessments and presents justification for acting in the face of uncertain knowledge about the impacts of hazards (Callréus 2005).

Uncertainty and unpredictability are unavoidable aspects of any scientific endeavour and should provide impetus for action since uncertainty increases potential risks associated with the scientific subject (Lewandowsky, Ballard, and Pancost 2015). For example, EDCs were not incorporated into the accounting in the United Nations Environmental Programme’s Valuing Plastics report, which captured the dollar values of a range of externalities caused by the plastics industry “due to its complexity and for lack of quantitative data” (UNEP 2014, 100). We propose that this is precisely why the precautionary principle should be applied in the proposed treaty.

Since the Rio Declaration on Environment and Development in 1992, the precautionary approach has been applied frequently in international conservation and protected area policy. According to Principle 15 of the Rio Declaration, “the precautionary approach shall be widely applied … where there are threats of serious or irreversible damage, [and the] lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation” (UN 1992). The 2016 UNEP report Marine Plastic Debris and Microplastics recommends the precautionary approach, particularly in relation to nanoplastics: “Significant knowledge gaps and uncertainties remain, particularly for nano-sized material, and this may justify a more precautionary approach” (105).

However, despite UNEP’s approbation of the precautionary approach, and its declaration of manifest uncertainty associated with EDCs, no commitment to this approach has been forthcoming. Jasanoff (2003) suggests that a key flaw in conventional risk assessments is that they pre-empt political discussion. This means that plastic products and their associated chemicals on the market are assumed to be desirable. This is because basic science is limited to whether an innovation can be made rather than considering whether it should be made. Interrogating the latter exposes potential conflicts of interest and political and financial agendas such as policy-relevant science primarily funded and driven by the petrochemical industry (see UNEP 2016). A particularly startling example of a conflict of interest relevant to this topic is when a major EU public health initiative (the previously cited “State of the Art Assessment of Endocrine Disruptors” or the Kortenkamp Report) was hijacked by plastics and chemicals industry lobby groups in 2015 (Horel 2015). Scientists and regulatory agencies alone can determine neither what science should do nor what people want it to do. This involves democratic deliberation and transparency.

Another reason for democratizing the science and policy of plastics pollution is that the capacity for institutions to learn is often limited by the blind spots produced by their narrow framing of the problem (Jasanoff 2003, 242). For example, testing single toxins such as BPA and ignoring the cumulative or“cocktail” effects of multiple exposures in real-world scenarios will result in less than optimal management strategies (Shaw 2014). One way to correct this is to conduct context-specific, real-world science in transdisciplinary teams, including those living with the impacts of plastics pollution on a daily basis.

A shift of focus toward what new technologies should do in risk assessment is particularly salient in the case of the unqualified surprises inherent in PNS. Where scientific certainty is elusive, so is certainty regarding the safety of a product across the broadest of scenarios, temporalities, and territories.¹ This is also why a precautionary approach is necessary in such cases. Jasanoff’s (2003) “distribution” as a “technology of humility” suggests that much legislation and policy is focused at “end of pipe”² and does not account for the distributive consequences of products. The lives and legacies of plastics comprise a case in point. What is needed are “sustained interactions between decision-makers, experts and citizens, starting at the upstream end of research and development … [to expose] the distributive implications of [scientific] innovation” (Jasanoff 2003, 242).

A review of the rhetoric surrounding scientific uncertainty in the media, Making Sense of Uncertainty: Why Uncertainty Is Part of Science, sheds some light on why the connection between EDCs and plastics pollution is largely absent from public awareness, discourse, and action in this field: “Scientific uncertainty is presented as a deficiency of research. We want (even expect) certainty—safety, effective public policies, useful public expenditure. Uncertainty is seen as worrying, and even a reason to be cynical about scientific research—particularly on subjects such as climate change, the threat of disease or the prediction of natural disasters” (Gibbs et al. 2013, 3). If it is suggested to civil society that scientific uncertainty is just poor science, then it is no wonder that policy seldom builds in mechanisms to deal with uncertainty. It will take a critical mass from civil society to challenge current plastics pollution policy and demand transparency and precaution in risk assessments where uncertainty or ambiguity presides.

There are contradictions, disconnections, and gaps in current international agreements associated with toxicants and plastics pollution. For example, Mirex (a flame retardant) and polychlorinated biphenyls (PCBs) are two POPs (also known EDCs). Although they have been banned by the Stockholm and Basel Conventions, not all countries are signatories to these conventions, and some still use these chemicals in the production of plastics. Global trade flows of plastics mean that nations that are signatories to these conventions might continue to import plastic products from states where these toxicants are unregulated. In addition, plastics containing these additives flout international environmental policies when they cross state boundaries on trade winds, ocean currents, and transboundary rivers and lakes.

Despite the growing body of evidence to the contrary (Guo et al. 2017; Teuten et al. 2009; Wang et al. 2007), the Stockholm Convention does not recognize many EDCs commonly used in the production of plastics (e.g., phthalates) as having the capacity to bioaccumulate in fatty tissue or biomagnify up the food chain. Therefore, such EDCs are not classified as POPs under the convention. We also found a contradiction in the European Commission’s REACH, Europe’s key chemical control program responsible for the registration, evaluation, authorization, and restriction of chemicals manufactured in or imported into the European Union. Di(2-ethylhexyl) phthalate (DEHP) is a plasticizer used in the production of plastics. Although DEHP is strictly controlled under the REACH program, BPA (a recognized EDC) is allowed in the production of consumer plastics with the exception of polycarbonate baby bottles.

The effectiveness of international agreements committed to reducing marine plastics pollution, like the international agreements on toxicants noted above, is often diluted by a lack of attention to the global magnitude, interconnectivity, and cumulative impacts of plastics pollution and/or a lack of political will to address the problem meaningfully at source. The International Convention for the Prevention of Pollution from Ships (1973) (MARPOL 73/78) is the first international agreement aimed at reducing marine plastics “litter” and currently has 156 signatory states supporting it. However, though 80 percent of marine plastics pollution comes from land-based sources (Jambeck et al. 2015), MARPOL is limited to the regulation of pollution of the marine environment by ships via routine operations or accidents. The United Nations Convention of the Law of the Sea Convention (UNCLOS) came into effect in 1994 and is supported by the Convention on Biological Diversity. UNCLOS has a mandate to protect and preserve the marine environment and prevent marine plastics “debris” on a global scale. It is the only regulatory instrument providing the mandate for the prevention of marine plastics debris. However, it does not deal adequately with points where pollution enters the sea (e.g., rivers and estuaries), and implementation and enforcement are weak because of its lack of standards and specific obligations.

The United Nations Washington Declaration on the Protection of the Marine Environment from Land-Based Activities was created in 1995 to address this gap. The declaration saw 108 governments committed to act to prevent marine pollution from terrestrial sources, including sewage, POPs, radioactive substances, heavy metals, oils (hydrocarbons), nutrients, sediment mobilization, litter, and physical alteration and destruction of habitat. However, as a non-binding agreement, it has had limited impact. Since the ratification of MARPOL in 1973, Rochman and her colleagues (2013) found that concentrations of microplastics had increased by two orders of magnitude in the North Pacific Ocean. The latest estimate of mismanaged plastic waste entering the world’s rivers, lakes and oceans is between 24 and 34 million metric tonnes (Mt). This figure will increase to 36–90Mt y−1 by 2030 if no further action is taken (Borrelle, Ringma, Law, Monnahan, Lebreton et al. 2020). These examples illustrate the failure of existing agreements targeting marine plastics.

The United Nations Environmental Assembly (UNEA) is the world’s highest-level decision-making body on the environment. At the third session of the UNEA in 2017, Resolution 10 on Marine Litter and Microplastics called for the convening of an Ad Hoc Open-Ended Expert Working Group, and 10 d (ii) tasked this expert group with identifying the range of current regional, national, and international response options to the plastics pollution crisis. Raubenheimer, Oral, and McIlgorm (2018) responded to this call and concluded that none of the initiatives (neither individually nor collectively) dealt with the full life cycle of plastics and that many lacked enforceable laws, specific targets, sound action plans, regular monitoring and evaluation, and reporting. In addition, these existing global policy instruments and bodies do not have the potential to provide an integrated approach to address the full life cycle of plastics pollution considering their individual mandates and funding mechanisms.

Although waste management (e.g., recycling) remains the focus of current international commitments, academic and other research institutes have recently called for multilateral plastics pollution governance that concentrates on prevention and reduction systems and strategies (“top of pipe” solutions) (e.g., Farrelly, Borrelle, and Fuller 2021, Haward 2018; Raubenheimer and McIlgorm 2017; Simon and Schulte 2017). Some of them recommend a treaty based on the successes of the Montréal Protocol (Haward 2018; Raubenheimer and McIlgorm 2017; Rochman et al. 2013). We are also of this opinion. Kofi Anan proclaimed the Montréal Protocol the most successful international agreement at the Millennium Assembly of the United Nations in September 2000 (UN 2000). Under the protocol, CFCs were reclassified as “hazardous,” and today 98 percent of CFCs have been phased out (Rochman et al. 2013). Supported by 196 states and the European Union, the Montréal Protocol now has more signatories than any other international agreement or body, including the United Nations itself. Not only does the agreement bind countries, but also its adaptive management approach provides financial assistance for phase-outs in developing nations. If the proposed plastics pollution treaty is to realize the success of the Montréal Protocol, it will also need to emulate its somewhat revolutionary approach by adopting the following principles: common concern, precaution, and common but differentiated responsibilities (Green 2009).

The Ad Hoc Open-Ended Expert Working Group tasked with advising the UNEA on the Resolution on Marine Litter and Microplastics is an excellent example of the democratization of plastics pollution science and policy at the highest level of environmental governance. The resolution (UNEP 2019) reaffirms Sustainable Development Goal 14.1, which aims to “prevent and significantly reduce marine pollution of all kinds, in particular from land-based activities.” One of the resolutions to emerge from the third session of the UNEA was the formation of the Expert Group. It is represented by the following accredited civil society groups: farmers, women, scientific and technological community, children and youth, Indigenous peoples and their communities, workers and trade unions, business and industry, non-governmental organizations, and local authorities. These civil society organizations are crucial in providing expertise and scientific knowledge, informing governments of local needs and opinions, and presenting “at the coalface” realities of policy decisions. The Expert Group convened twice in Geneva between UNEA3 and UNEA4 and once online in 2020 in preparation for UNEA5 in 2021. The group provided recommendations to UNEA member states and the UNEP Secretariat for a multilateral governance structure, a legally binding treaty, and precautionary and preventative responses to the full life-cycle impacts of plastics pollution. The group proved to be particularly influential in the resolution negotiations at UNEA4 in Nairobi in March 2019. However, despite widespread agreement among the majority that urgent, ambitious, and global action is needed to address plastics pollution, a small minority heavily invested in plastics production led by the United States blocked ambitious text and delayed negotiations. Despite this disappointment, the mandate of the Expert Group was extended at UNEA4 at its 2020 meeting it identified technical and financial resources or mechanisms. The Expert Group will report on its progress in considering response options at UNEA5 in February 2021.

In addition, at its fourth session in March 2019, the UNEA adopted a Resolution on Marine Plastic Litter and Microplastics, which included a request to the executive director to “strengthen scientific and technological knowledge with regard to marine litter including marine plastic litter and microplastics.” This resulted in the formation of the Scientific Advisory Committee (SAC) in August 2019, tasked with supporting the preparation of the Assessment on Sources, Pathways, and Hazards of Litter Including Plastic Litter and Microplastic Pollution (the Assessment) for submission to UNEA5. The SAC is made up of natural and social scientists with expertise in plastics pollution from seventy developed and developing UN member states. The process by which SAC contributes to the Assessment is highly democratic and iterative. SAC members are provided with ample opportunities to offer country-specific narratives reflecting local and Indigenous knowledge systems and practices, cultural responses, and economic and political drivers of and barriers to assessments and solutions.

The extension of the Expert Group mandate means that plastics pollution remains on the international agenda and provides an opportunity for the consideration of a future legally binding agreement. However, this will depend on the level of support to those who suffer most immediately from plastics pollution: developing states and marginalized sectors of society. More resources will be needed to ensure that these states and communities (particularly developing countries and Indigenous communities) have the capacity to engage fully in the UNEA process.

Multilateral treaties have various enforcement mechanisms that set legal verification and compliance mechanisms. For example, the Nuclear Non-Proliferation Treaty has an International Atomic Energy Agency mandate to conduct fact-finding missions in state parties’ nuclear energy facilities to ensure that these parties are not using them to make weapons. Often, though, treaties have voluntary compliance mechanisms based on transparency reporting and peer reviews whereby states monitor one other and bear the brunt of diplomatic rebukes for non-compliance. Whereas this might be more successful in some states than others, it does provide an effective form of moral compulsion. Once a state is a signatory to an international law, that state is bound by the obligations of that law in its national context. Sometimes states have to put in place national legislation to give effect to an international treaty to which it is a signatory, for example legislating specific penal sanctions. However, this depends on the treaty and the legal and constitutional nature of the state in question. Nevertheless, once a state has signed a piece of international law, it is bound by the Vienna Treaty on Treaties not to do anything contra to the spirit or letter of that legal instrument. On that basis, a legal challenge could be mounted under the national law of that state if its actions are in violation of the international law that it has signed. Therefore, a specific court is not needed to make legal challenges regarding international law, which can be enforced by courts in the country seen to break that law.

There is also a wider point here about the normative effect that setting clear legal boundaries can have on the policies and practices of states. The treaties prohibiting landmines and cluster munitions have no strict verification measures and are not even signed by states such as the United States, Russia, and China. Yet they have contributed to overhauling the policies and practices of those states. The production, trade, and use of landmines have been virtually eliminated since that treaty was signed in 1997. Thus, we argue that a specific multilateral legal instrument with strict provisions aimed at preventing plastics pollution is the most effective way to influence the policies and practices of all states. Such an instrument would be effective in terms both of its norm-setting power and of the actual implementation of provisions related to prohibiting certain types of plastics produced and the practices that allow plastics pollution to enter the environment.

A growing impetus to action is being fuelled by increasing public debate and mounting evidence that plastics can carry EDCs, pathogens, POPs, and alien species across ecological territories and political boundaries (e.g., Chapters 1 and 4 of this volume; Viršek et al. 2017). The movement of plastics across global markets makes plastics pollution a “common concern” for all of humankind (Chavarro 2013). Silvio Funtowicz and Jerome Ravetz’s (1992) “post-normal science,” Sheila Jasanoff’s (2003) “technologies of humility,” and Andrew Stirling’s (2015) “innovation democracy” all assert that speculative sciences and risk assessments underpinning regulatory policies must be democratized if they are to protect current and future life. This proposed radical shift in international plastics pollution policy will entail a reinstitutionalization of “knowledge-making within institutions that have worked for decades at keeping expert knowledge away from the vagaries of populism and politics” (Jasanoff 2003, 235).

Historically, there have been plenty of examples of science and industry producing innovations that later proved to be disastrous, including CFCs, thalidomide, tobacco, asbestos, POPs, and EDCs. As end users or innocent bystanders, citizens should have a key role in deciding which plastics and associated chemicals are needed, valued, hazardous, unnecessary, and so on. We argue that, where there is uncertainty regarding the persistent and polluting implications of a product, greater emphasis on precaution is needed. A precautionary approach is a powerful way “to moderate the powerful forces of closure and lock-in science and technology” prior to releases of products (Stirling 2015, 18). Because of the uncertainty and speculation surrounding EDC-plastics pollution science, a precautionary approach requiring international collaboration must be legally binding and enforceable to prevent ongoing global harms. The plastics pollution treaty proposed here is based on the success and sound principles of the Montréal Protocol, particularly “precaution” and “common concern.” Another reason why the treaty must be legally binding is that voluntary commitments can mask vested interests in the fossil fuels and plastics industries.

Like climate change and clean water, the dynamic, persistent, unpredictable assemblages of plastics pollution are “a common concern of humankind” because they “inevitably transcend the boundaries of a single state and require collective action in response” (Shelton 2009, 83). The proposed treaty would respond to the urgency expressed by the global community to address the interdependent harms caused by plastics pollution to the biosphere and to humanity and to level the playing field. With political will from member states and further capacity building for civil society to lobby governments within the UNEA process, the Resolution on Marine Litter and Microplastics could culminate in such a treaty at UNEA5. A global, legally binding treaty with clear targets and standards is the most comprehensive way to redress the Faustian bargains made by Big Plastics.

1. 1. For example, exclusive economic zones, species’ territorial boundaries (feeding and breeding grounds), and national/state borders.
2. 2. A waste management approach focused on pollution once it has entered the environment. “Top of pipe” solutions, conversely, focus on preproduction and prevention.

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