California AG Wins Round Two in Subpoena Fight With PLASTICS

A federal judge has rebuffed a second attempt by the Plastics Industry Association (PLASTICS) to block California Attorney General Rob Bonta from obtaining documents in his investigation of misrepresentation about the viability of plastic recycling, Reuters reported yesterday. The ruling by US District Judge Amit Mehta in Washington, DC, stated that the association “failed to establish why it had jurisdiction over California Attorney General Rob Bonta or why the documents were protected from disclosure under the US Constitution's First Amendment," writes Reuters.

AG seeks to hold industry responsible for "perpetuating" recycling myths

Bonta announced an investigation into the industry’s role in plastic pollution in 2022, first issuing a subpoena to ExxonMobil followed by another for PLASTICS. At the time, he cited reporting from NPR and PBS Frontline that industry executives as far back as the 1970s were aware that recycling was not a feasible option for reducing plastic waste. The purpose of the investigation, said Bonta, was to determine the role that industry played in perpetuating myths around recycling. The American Chemistry Council (ACC) responded with a forceful statement denouncing “misleading portrayals of our industry and misguided initiatives,” as reported in PlasticsToday. (In December 2023, Bonta also issued an investigative subpoena against the ACC, seeking documents related to an environmental study it submitted to the Federal Trade Commission in favor of chemical, aka advanced, recycling.)

Related:LA County Sues 'Plastic Polluters' PepsiCo and Coca-Cola

Documents sought by AG were widely available until recently

The subpoena issued to PLASTICS in 2022 sought documents, primarily newsletters published by the association, that until recently were generally available to the general public at the Hagley Library in Delaware. In fact, an NPR reporter used them for a report on how the public was allegedly misled into believing plastics would be recycled, according to Reuters. PLASTICS, claims Bonta, terminated its agreement with the library after he began seeking the documents. The association now requires permission before allowing review of the documents, Bonta said in a press release posted on his website.

Judge denies First Amendment privilege to PLASTICS

After a first unsuccessful attempt to block the investigative subpoena on the grounds that it would make public internal communications related to strategy and have a chilling effect on its members’ rights to free association and expression, PLASTICS amended its motion. It largely restated the claims made in the first attempt, adding some new strategies linking Bonta to Washington’s jurisdiction, notably that the subpoena was served in DC via a hired process server, writes Reuters. Judge Mehta countered that this did not alter the fact that the association has failed to demonstrate that the records in question had a First Amendment privilege, given that were widely available until recently.

Next up, PLASTICS has a date with Sacramento Superior Court Judge Richard Sueyoshi on Dec. 3, where it will need to show cause for non-compliance with the subpoena.

Bonta’s investigation into ExxonMobil, meanwhile, has resulted in a lawsuit that he filed in September of this year. He said he is suing the petrochemicals giant for “engaging in a decades-long campaign of deception that caused and exacerbated the global plastics pollution crisis.” If the lawsuit is successful, it’s estimated that damages could reach multiple billions of dollars. You can read our reporting in “California Sues ExxonMobil for Plastics Recycling Deceptions.”