New Yorkâ€s plastic lawsuit against PepsiCo has been dismissed. Whatâ€s next?

Late last month, the New York state Supreme Court granted a request from PepsiCo to dismiss a plastic pollution lawsuit brought against it by the stateâ€s attorney general, Letitia James.

The complaint, which sought civil penalties against the food and beverage corporation for causing plastic pollution in the Buffalo River, was “predatory,†according to the decision written by Judge Emilio Colaiacovo. He accused James†office of making “phantom assertions of liability that do nothing to solve the problem that exists.â€

PepsiCo “did not pollute the Buffalo River or any other local waterways,†Colaiacovo wrote. “Other people did!â€

That unusually emphatic dismissal raises questions about similar lawsuits that are pending around the country — as well as the prospect of future litigation to hold companies responsible for the plastic pollution generated by their products. Just one day before Colaiacovoâ€s decision was released, Los Angeles County filed a similar complaint against PepsiCo and Coca-Cola, arguing that the companies had harmed public health and deceived consumers about the efficacy of plastics recycling. The city of Baltimore has filed its own suit against PepsiCo, Coca-Cola, Frito Lay, and plastic manufacturing companies, and two lawsuits in California — one from the state attorney generalâ€s office and one from a coalition of environmental nonprofits — allege that Exxon Mobil promoted plastics recycling despite knowing it would be unable to keep pace with waste generation.

But several attorneys Grist spoke with — and James†office — said theyâ€re not concerned. Jill Heaps, senior legal director for the nonprofit Surfrider, said Colaicovoâ€s dismissal was “disappointing,†but she anticipates it will be overturned on appeal. “I donâ€t think it has any negative consequences for the litigation happening in California or elsewhere.â€

Every year, the U.S. produces 73 million metric tons of plastic garbage, and about 95 percent of it doesnâ€t get recycled — not just because the U.S. lacks sufficient recycling infrastructure, but because of inherent properties of the material itself. All that nonrecycled plastic eventually gets burned or sent to a landfill, or else becomes litter in the natural environment, where it breaks down into small fragments called microplastics. Scientists have found these fragments in virtually every environment theyâ€ve studied, and in the bodies of hundreds of animal species. In humans, theyâ€ve linked microplastics to health concerns including metabolic disorders and an increased risk of heart attack. 

The premise of the New York lawsuit and others like it is that major manufacturers of plastic products shouldnâ€t just wash their hands of these impacts and blame consumers for improperly disposing of their products. In the view of prosecutors and environmental groups, companies should be financially responsible for managing the pollution they generate.

James†lawsuit was the first brought by a state against a major plastics polluter. In her complaint, filed last year, James described PepsiCoâ€s trash as a “persistent and dangerous form of plastic pollution.†Her first legal claim against the company was that it had created a “public nuisance†for residents of the Buffalo River watershed. This was based on a 2022 survey of all types of waste along the river, which found that the majority of the waste was plastic and that the leading contributor to that plastic was PepsiCo. The companyâ€s plastic garbage was identified three times more often than that of the second-greatest contributor. 

The complaintâ€s other claim involved consumer protection law: Although PepsiCo had “long been aware†of the environmental and human health risks posed by single-use plastics, James†office said PepsiCo had obscured these risks in its communications to the public, in part by promoting plastics recycling. 

Colaiacovo rejected both of the lawsuitâ€s claims. He said James “fails to provide any evidence†that PepsiCo knew its plastic packaging would become pollution, and seemed to agree with PepsiCo that it should not be held liable for what happens to its plastic packaging after consumers are done with it. He characterized James†arguments as a slippery slope that could eventually allow litigation against any company, so long as the plaintiff could construct a conceivable scenario linking an undesired action to a product it makes.

Plastic pollution “is a purely legislative or executive function to ameliorate,†he wrote, calling the lawsuit “policy idealism.â€

Heaps, whose organization is part of the coalition that recently sued Exxon Mobil in California, said Colaiacovo shouldnâ€t have dismissed the case so early. “The judgeâ€s job in a motion to dismiss is to give all of the assumptions in the favor of the plaintiff,†she said — “to ask: ‘Is it possible to make this argument?â€â€ and then to allow the plaintiff to produce additional evidence to do so. Thatâ€s what happened with a similar consumer protection lawsuit filed by the nonprofit Earth Island Institute against Coca-Cola. This August, an appeals court in Washington, D.C., said that Earth Islandâ€s claims were “facially plausible†and that it should have a chance to further substantiate them in the D.C. Superior Court. 

Additionally, Heaps noted some other peculiarities in Colaiacovoâ€s dismissal, starting with a statement that in order for a public nuisance claim to be viable, the product in question must be “defective or unlawful.†

“I donâ€t know where he made that up,†she said. “Iâ€ve never seen that in any case law.†

Tyson Redenbarger, a civil litigation attorney with the firm Cotchett, Pitre, & McCarthy LLP — which is representing the California nonprofits in their plastics lawsuit against Exxon Mobil — agreed. To justify a public nuisance claim, a product or practice must violate public health, morals, comfort, or other common rights. Redenbarger listed a number of legal products that have been found to have caused a public nuisance, like lead paint sold before 1978, which contributed to widespread health issues. “Defendants always argue, ‘Oh, my product is legal, and I sell it throughout the state,â€â€ he said. “But thatâ€s not the standard for nuisance.â€

Heaps also called out the decisionâ€s unusually emotional tenor — characterized by, for example, the use of an exclamation point when describing consumers†responsibility for waste generation, not PepsiCoâ€s. She said it was “very unusual†to see an exclamation in legal filings: “I was like, ‘Which law clerk wrote that?â€â€

In a statement to Grist, PepsiCo said it was pleased with the dismissal and that it “remains serious about plastic reduction and effective recycling. 

“We will continue to collaborate with key partners to advance smart material collection policies, improve recycling infrastructure, boost consumer awareness about the importance of recycling and establish partnerships focused on reducing waste and exploring innovative solutions to plastic pollution,†said the companyâ€s vice president of global corporate communications, Andrea Foote. 

Earlier this year, PepsiCo company said it would likely miss a self-imposed deadline to make 100 percent of its packaging recyclable, compostable, biodegradable, or reusable by 2025. Its most recent sustainability update reported a 6 percent increase in the use of virgin plastic, in contrast to the companyâ€s goal to reduce it by one-fifth by the end of the decade.

Sumona Majumdar, the Earth Island Instituteâ€s CEO, said she didnâ€t think the New York state case was a bellwether. Her organizationâ€s D.C. lawsuit has already demonstrated the plausibility of plastic pollution-related consumer protection claims, and a separate lawsuit brought by the Earth Island Institute in California was recently allowed to move forward with public nuisance claims against Coca-Cola, PepsiCo, and large consumer goods companies.

Sara Gross, chief of the affirmative litigation division for the city of Baltimore, is representing Baltimore in its public nuisance and consumer protection lawsuit against Coca-Cola, PepsiCo, Frito Lay, and large plastic manufacturers. “We respectfully disagree with the New York judge’s ruling and intend to proceed with our case,†she told Grist. 

A spokesperson for the New York attorney generalâ€s office declined to say whether James would appeal to an appellate court, but they opposed the characterization of their lawsuit as some sort of fishing expedition — seeking to “impose punishment while searching for a crime,†as Colaiacovo put it.

“This legal theory is growing, … others are pursuing it, and this one decision is certainly not going to be the be-all, end-all,†the spokesperson said. “We wouldnâ€t have taken the steps of filing a lawsuit if we didnâ€t believe that the legal argument had merit.â€