Washington — Two plastics trade associations and California Attorney General Rob Bonta are in a legal battle over Bonta’s probe into whether the industry made dishonest claims about recycling.
Bonta petitioned a California state court May 28 to compel both the American Chemistry Council and the Plastics Industry Association to turn over documents he says they’re trying to hide from his investigation.
That came after the plastics groups filed separate but related lawsuits May 24 in U.S. District Court in Washington, arguing that Bonta’s aggressive tactics are chilling their speech and political advocacy.
The industry groups are asking the court to scale back or toss out subpoenas Bonta gave them as part of an investigation that he launched in 2022.
Bonta’s investigation, which mirrors climate lawsuits against fossil fuel companies, is probing whether the industry has oversold recycling for decades — including chemical recycling — to the public and lawmakers as a solution to plastics waste.
The lawsuits are one of the few public glimpses inside the ongoing probe.
Bonta subpoenaed others, including ExxonMobil Chemical Co., when he began the investigation in 2022. In April, Reuters quoted Bonta saying that he could decide “in the coming weeks” on the probe.
But the plastics groups are now pushing back on Bonta’s subpoenas, accusing him of trying to punish them for holding views on plastics policy that differ from Bonta’s.
The industry groups said the attorney general was trying to unconstitutionally chill their political activity by seeking internal documents on member companies’ views, in ways that it said violate legal precedent on free speech and political activity within groups.
“The California Attorney General may disagree with ACC’s political views, including our recommended policies for creating a more sustainable plastics future, but the U.S. and California constitutions protect free speech and political engagement and prohibit government officials from retaliating against the exercise of those rights,” said Allison Starmann, ACC’s general counsel.
Similarly, Matt Seaholm, the president and CEO of the plastics association, said the lawsuit was about protecting free speech and political rights of its member companies.
“The Plastics Industry Association has cooperated with the California Attorney General’s requests for the last two years, but it is imperative that we continue to protect our members’ First Amendment rights,” he said.
“The plastics industry is investing billions of dollars in innovative technologies to increase recycling rates and we remain committed and willing to work with policymakers to keep plastic out of the environment and in our circular economy,” Seaholm said.
In a May 28 statement, Bonta accused the industry groups of trying to hide information from his investigation.
“For years, the plastics industry has engaged in an aggressive campaign to deceive the public, perpetuating a myth that recycling can solve the plastics waste and pollution crisis,” Bonta said.
“The continuous delay tactics are failing to comply with our subpoena. Enough is enough: What are they trying to hide? That’s why we’re seeking a court order to compel the plastics industry to comply fully with our investigative subpoenas.”
Both ACC and the plastics association said they had provided non-confidential documents in response to the subpoenas.
But in a May 3 letter from Bonta to ACC, which ACC made public, the attorney general’s office called the chemical association’s response “dismal” and said its free speech claims would not protect untruthful speech designed to “fraudulently sway” government policy.
In the subpoena, the California deputy attorney general leading the probe, Nina Lincoff, said Bonta has received information that ACC’s “promotion and marketing of recycling plastic may have resulted in legal violations,” including in false advertising, unfair competition, product liability and consumer protection.
Bonta told ACC that it had not produced any evidence that providing the documents would violate its rights to speech, assembly or petitioning the government.
“ACC’s privilege claims lack merit, and we request ACC promptly produce the documents … responsive to the subpoena by May 17, 2024,” Bonta wrote.
When he launched the probe, Bonta created a website detailing what he said was industry deception, including serious doubts by executives about the economic viability of recycling going back to the 1980s. Bonta pointed to quotes in a 2020 documentary interviewing former senior plastics association leaders.