New York State Sues PepsiCo for “Endangering the Environment and Public Health with Plastic Pollution”: What Can You do in Pennsylvania?

By Carol Armstrong, Sierra Club Southeast Pennsylvania volunteer leader, Member of Sierra Club State-wide Zero Waste Team, Penn State University Extension Master Watershed Steward, Friends of Heinz Refuge Board Secretary

Imagine wildlife having to coordinate a water landing, navigate, or look for food amongst large floating patches of plastic trash. What is the likelihood that they will eat a piece in error or eat another aquatic biota (plant or animal) that has adsorbed or consumed microplastics? It seems impossible for aquatic animals, as well as humans and terrestrial wildlife not to ingest plastics. However, when the plastic is floating in the water, it become ‘dirty’ with other materials that are not dissolvable in water that are then also consumed by wildlife, e.g., bacteria, pesticides, polyaromatic hydrocarbons, PCBs, cadmium, lead, and living things like fungi and diatoms. And the chemicals that are added to plastics’ polymers, also toxic, begin leaching to the water as soon as they are placed in the environment. Plastics are a vector for many contaminants, especially in waterways.

New York State’s Attorney General, Letitia James, has said enough is enough: the pollution in the Buffalo River, which is a source of drinking water, is damaging people, wildlife, and water quality. The lawsuit found that single-use plastics that are produced by PepsiCo Inc. are:

  • Contaminating drinking water,
  • Harming wildlife, and
  • Causing public harm.

And that PepsiCo Inc. is:

  • Failing to warn consumers about the potential health and environmental risks of its single-use plastic packaging,
  • Failing to warn consumers about these health and environmental risks, and
  • Misleading the public about its efforts to reduce the impact of its packaging.  

PepsiCo Inc. reported several actions they are “striving”, “trying” and “transitioning” to make, but provide no outcome data on their success. They claim that they will “design” 100% of their packaging to be recyclable, compostable, biodegradable, or reusable by 2025, and will cut virgin plastic “per serving across our global beverages and convenient foods portfolio by 50%” by 2030. Does recyclable mean it will be effectively recycled into something else that will eliminate the need for virgin plastic? Often this is not true and other lawsuits have focused on this issue of the misleading use of the word “recyclable”. Are there any industrial plastic composting facilities in the U.S.? – No. It is difficult to understand what PepsiCo Inc. will actually do. New York State finds their description of their efforts to be misleading to consumers and the public. Further, New York State is seeking PepsiCo Inc. to obtain disgorgement (securities law violators must give up ill-gotten gains or gross proceeds from illegal conduct (cited from Congressional Research Service, February 14, 2020)), pay civil penalties, and provide restitution for the damage to New York’s communities and environment. The Attorney General referenced New York’s new constitutional amendment, Article 1 Section 19, for the Environmental Rights of each person to clean air and water and a healthful environment.

See the rest of the New York Attorney General’s statements in their press release for valuable arguments and use of data to substantiate the problem.  Data is available from Break Free From Plastic, and from the Ocean Conservancy’s Annual Report for 2022 that shows that among 50 states, Pennsylvania is among the top three states that have the largest number of volunteers, and by far the most pounds of trash removed in the country.  Keep up the amazing work! Every year during the International Coastal Cleanup, volunteers use an Ocean Conservancy Trash Data Form to count and sort the debris they cleaned up along waterways (not just the ocean coasts). It’s hard work and takes extra time to enter the data, but it is important community work. If you go to the Ocean Conservancy International Coastal Cleanup website, there will be tools to help you find a cleanup or start your own.  

When you are petitioning the Pennsylvania Governor to support an action to protect the environment, consider also asking him to reference and endorse in his announcement our Article 1, Section 27 Environmental Rights Amendment (ERA), written with very memorable and inspiring words:
“The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment.  Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come.  As trustee of these resources, the commonwealth shall conserve and maintain them for the benefit of all the people.”

Later arguments by an environmental coalition resulted in the PA Supreme Court to decide that these public natural resources include privately owned resources such as schools and playgrounds. Another PA Supreme Court decision held that the trustees mandated to conserve and maintain natural resources for all the people refers also to local government officials among those trustees that have that mandate of the commonwealth, such as municipal governors.  The ERA will build in strength over time from being cited in case law.

This blog was included as part of the February 2024 Sylvanian newsletter. Please click here to check out more articles from this edition!