Plastic on trial: California’s “unprecedented” lawsuit against ExxonMobil

25 Sep 2024 --- California’s attorney general Rob Bonta is suing ExxonMobil, in what environmental campaigners are calling “the single most consequential lawsuit filed against the plastics industry” in history. The suit alleges that through decades of negligence and intentional misinformation, the petrochemical giant caused and concealed serious harm to public and environmental health throughout the state. 

A trial is demanded for claims including causing public nuisance, water pollution, misleading or untrue advertising, misleading environmental marketing, and unfair, unlawful or fraudulent business practices. 

The suit details how ExxonMobil “fraudulently” used the false promise of mechanical recycling, and in recent years, advanced recycling (pyrolysis) — which the plaintiffs say is technically and economically unfeasible — to justify continued plastic production despite the knowledge this would add to a global pollution crisis. 

Patrick Boyle, a corporate accountability attorney at the Center for International Environmental Law (CIEL), tells Packaging Insights: “I’m curious to see what arguments and defenses Exxon will raise, but it will not be an easy road. There is a growing body of knowledge on the scope of the plastics crisis, the inefficacy of recycling and the industry's knowledge of these shortcomings.” 

“I would not want to be the one tasked with crafting a defense.” 

ExxonMobil shares the following statement: “For decades, California officials have known their recycling system isn’t effective. They failed to act, and now they seek to blame others. Instead of suing us, they could have worked with us to fix the problem and keep plastic out of landfills.” 

Single-use production

Growth in virgin polymer productionover the past decade has massively outpaced recycling infrastructure.ExxonMobil recorded US$36 billion in profits in 2023 and is the world’s largest producer of petrochemical polymers used for single-use plastics. 

The suit notes that this is a core component of the overall business, with “80% of growth being dependent on single-use plastics applications.” Since 2014, ExxonMobil has increased its ethylene production capacity 77%, PE capacity 82% and PP capacity 89% in the US alone.

In 2021, the corporation contributed more virgin polymers for single-use plastic than any other petrochemical company — over six million tons — roughly equivalent to two trillion single-use plastic cups. 

In 2023, ExxonMobil had an annual production capacity of 14.5 million tons of PE and PP plastics petrochemicals, including a production capacity of 7.7 million tons annually in the US alone. 

Recycling efficacy

Amid the ramp-up in production, the company, along with its partners in the American Chemistry Council (ACC), is heavily promoting recycling as a solution to the waste crisis. The suit reveals internal discussions records showing the business’ leaders knew traditional mechanical recycling would not work and “never intended to fund long-term recycling projects.” 

As public opinion and legislative pressure against the waste crisis have grown, the introduction of “advanced recycling” methods like pyrolysis has been presented as a new solution to aid the development of a circular economy. 

The suit makes a detailed case as to the inefficacy of these methods as well, and shows that ExxonMobil’s advanced recycling program, which began in 2022, is based on technology developed and patented by the company since 1978. Its recent introduction is a marketing campaign, claims the case, which again conceals inherent technical flaws.

ExxonMobil is one of the biggest petrochemical producers on earth.Among other allegations, plaintiffs say 100% yield to new plastics is technically impossible, “and ExxonMobil knows this.” 

At its Baytown Complex — currently the site of ExxonMobil’s only active advanced recycling unit — 8% of the plastic waste in its cokers and ethane steam crackers becomes new plastics. The remaining 92% co-processed becomes primarily fuels, which are ultimately destroyed after they are combusted. 

But ExxonMobil says: “Advanced recycling works. To date, we’ve processed more than 60 million pounds of plastic waste into usable raw materials, keeping it out of landfills. We’re bringing real solutions, recycling plastic waste that couldn't be recycled by traditional methods.”

Financial threats

Petrochemical corporations under the ACC have stated that the legislative environment in California makes for an unattractive market, which reduces investments that could help build needed waste management infrastructure. 

Regarding the current lawsuit, an ACC spokesperson says: “It is disappointing that legal action has diverted time and resources away from our industry’s efforts to scale up a circular economy for plastics, where more plastics are reused and remade instead of discarded.” 

“Regardless, we remain steadfast in our mission to advocate for effective policy, collaborate with communities, and invest in new technologies that help to increase plastics recycling and recycled plastic use in products, contributing to a more sustainable future.” 

But Boyle says that the costs resulting from the waste crisis have not yet been calculated. “If an industry’s business model involves known, predictable and unavoidable harms at such a scale, those costs must be owned by that industry.” 

“Preventing industry from privatizing the profits while socializing the costs associated with their products is not deterring business. It is deterring a wildly destructive approach to business and a ‘devil may care’ attitude about our collective health and well-being. Policies and lawsuits that hold industry accountable should be viewed as revocations of a defacto subsidy that industry has enjoyed at our expense.” 

By Louis Gore-Langton