Plastic pollution blights the streets, beaches, parks, and lawns of Baltimore. A significant amount of that litter bears the circular red-and-blue Pepsi logo or the flowing white script of Coca-Cola’s branding.
But, legally speaking, none of that rubbish is Pepsi’s fault. Or Coke’s.
That’s what a Baltimore city circuit court judge ruled this summer following a legal battle in which the city and county of Baltimore sought money from PepsiCo, Coca-Cola, and others to clean up plastic pollution. Companies “conducting lawful activities,” wrote Judge Audrey J.S. Carrión, referring to the sale of single-use plastics, “should not be held liable under public nuisance claims because others are misusing the products in an unlawful manner.”
In other words, plastic pollution is a problem of consumer behavior, not corporate irresponsibility. As far as the state’s public nuisance law is concerned, a company’s liability ends at the point of sale.
Similar reasoning scuttled a public nuisance lawsuit the state of New York filed against PepsiCo and Frito-Lay and has arisen in similar litigation from Missouri to California. As environmental advocates and governments continue to develop this legal theory, those setbacks raise a fundamental question: When does a company’s responsibility for its products end? And can public nuisance laws succeed in making polluters pay?
The notion of public nuisance dates to 13th-century English common law and traditionally applied to violations of rights shared by the public, such as access to clean air. Since the 1970s, plaintiffs have increasingly tried to apply that idea to manufacturers whose products allegedly jeopardize public health, safety, and access to a clean environment.
These lawsuits, however, have “a mixed record of success,” said Timothy Lytton, a professor at the Georgia State University College of Law. Cases against opioid manufacturers, e-cigarette companies, and even the landmark litigation against Big Tobacco have sometimes succeeded — but mostly by securing favorable settlements, not because judges ruled in favor of the public-nuisance arguments.
Cases that have been heard, meanwhile, have struggled to convince judges of “causation,” or the idea that corporate defendants are substantially responsible for violating a public right. Judges are wary of extending corporations’ liability past the lawful sale of their products, particularly when those products aren’t used as intended. If a doctor or patient diverts opioids to the black market, for example, are the manufacturers responsible for the resulting harm?
This is essentially what Carrión said in the Baltimore case. It also echoes questioning from Justice Stephen Lindley last month as he heard arguments in the appeal of New York’s Pepsi lawsuit. “If [Pepsi] has to pay for the cleanup when somebody else is littering, … it’s not going to be sustainable,” he told the plaintiff’s lawyers. He appeared sympathetic to PepsiCo attorney Andrew Tulumello’s argument that the state had a “honking causation problem”: Pepsi, Tulumello said, “is not encouraging people to throw stuff in the litter.”
According to Albert Lin, co-director of the California Environmental Law and Policy Center at the University of California, Davis, there are three basic elements of a successful public-nuisance lawsuit. The first is demonstrating “substantial interference with a public right.” The second is causation — linking a defendant to that interference. The third, he said, is negligence, intent, or other “tortious conduct” in the defendant’s activities.
Environmental groups and governments are trying to get around the point-of-sale argument by linking causation and conduct: Plastics companies, they argue, are responsible for the pollution and knew their actions would harm public rights. Courts will therefore pay close attention to “foreseeability” — whether it was foreseeable that plastic would end up as litter, Lin said. As Lytton put it, manufacturers allegedly acted “in a way that foreseeably increases the risk of misuse.” The word “foreseeable” appears 22 times in Baltimore’s complaint.
Plaintiffs have evidence they can point to in arguing that plastic pollution was foreseeable. At least some manufacturers have known for decades that mass production of single-use plastics would contribute to environmental pollution, and that recycling would be unable to manage the problem. The lawsuits also cite microplastics contamination as part of the alleged nuisance, and an investigation published last week by the Los Angeles Times found that industry scientists have known since at least the 1970s that microplastics could lodge in humans’ bodies.
That history informs the framing offered by Scott Hochberg, general counsel and litigation director for the nonprofit Earth Island Institute. “Companies induced consumers to purchase these products while knowing the likelihood that they would end up as trash,” he said. “And that’s exactly what happened.”
Whether this framing succeeds may depend, in part, on the jurisdiction. In addition to the causation requirement for public-nuisance lawsuits, Lin said some states have a higher standard for demonstrating that defendants had “control” over their products at the time the nuisance occurred. New York and Maryland are two such states. California, on the other hand, is not, and courts there have so far proven more receptive to plastics public nuisance suits.
Judge Richard Seeborg of the U.S. District Court for the Northern District of California, who is overseeing two lawsuits against Exxon Mobil Corp., allowed one — from the Sierra Club — to proceed to trial. (He has not yet ruled on the other one, brought by the state’s attorney general.)
But even in California, surviving an early challenge is no guarantee of success. A judge there allowed Earth Island Institute’s public-nuisance claim — which rested in part on allegedly misleading recycling labels — against 10 food and beverage companies, but it was ultimately rejected earlier this year in a summary judgment. Earth Island plans to appeal.
Pepsi, Coca-Cola, and Exxon Mobil did not respond to Grist’s requests for comment.
Lin said it’s still “early days” for this legal theory, and the rejections do not necessarily signal a losing strategy. He noted, however, that the courts have shown significant skepticism for public nuisance in ongoing climate litigation, and a case the Supreme Court is hearing this term could make it more difficult for cities and states to bring such claims in the future.
Lin added that in climate lawsuits, plaintiffs have leaned more heavily on fossil fuel companies’ allegedly deceptive conduct, invoking consumer protection and false advertising claims that can be easier to substantiate than those based on public nuisance. Plastics plaintiffs could pursue a similar strategy, he said, potentially winning damages — though likely not orders requiring companies to clean up the pollution their products create.
Public nuisance laws could face new constraints at the state level, too. Last year, Montana enacted a first-of-its-kind law preempting state and local public-nuisance lawsuits based on “lawful activities,” while Kansas and Utah have since enacted their own restrictions. All three states’ laws are connected to model legislation drafted by the American Legislative Exchange Council, a conservative policy organization that brings together state lawmakers and private-sector members to develop model legislation.
Whatever their ultimate outcome in court, Lytton said plastics lawsuits can “win” in other ways — by unearthing new documents, for example, and putting the plastics issue higher on the public-policy agenda. They also provide an opportunity for plaintiffs to refute the plastics industry’s consumer-responsibility narrative.
“When you file a lawsuit, what you’re doing is you’re telling a story” — often about some sort of structural or corporate wrongdoing, Lytton said. “When you talk about tobacco, it’s not just about smokers. Or opioids, it’s not just about users. It’s about the companies and their design and marketing decisions. And so the framing that goes on in these [lawsuits] is moving the discussion of plastics away from ‘litterbugs’ and toward corporate responsibility.”
This story was originally published by Grist with the headline Plastic pollution is putting an old legal doctrine to a new test on Nov 6, 2026.
