Reflexive environmental law for the circular plastics economy

The problem of plastics is one of the most complex global environmental challenges of our time. Despite increase of their ubiquitous use, they pose risks to human health and immense damage to natural eco-systems. Circular economy legislative approaches in the EU have been adopted to tackle the plastics problem, yet the circular economy is also immensely complex to achieve given the diverse motivations of regulated actors and uncertainty of what circularity for plastics actually is. The theory of reflexive environmental law looks at the legal mechanisms and characteristics required to govern complex challenges. Its focus on law that fosters beyond compliance, adjustable backstops, a reduction to juridification and legal system reflexivity shows great potential to help understand and improve the governance of plastics circularity. In this study, the relationship between reflexive environmental law and concepts of a circular economy for plastics are examined. Following this, a contextual analysis of legislative acts in the EU is presented to understand the diversity of reflexive environmental law approaches being taken to govern the circular economy for plastics. Included in the review are the packaging directive (2004/12/EC amending 94/62/EC), the single use plastics directive (2019/904) and transposed legislation from two member state countries considered to be big players in the global plastics market: Germany and France. Results show that all reviewed legislative acts demonstrate reflexive environmental law characteristics but also that there is diversity in the reflexive approaches being taken to govern plastics circularity. For instance, France’s new CE law places more emphasis on fostering beyond compliance and building adjustable backstops while German legislation for circular plastics focuses more on reducing juridification and building legal system reflexivity. This study is an important step in the theoretical development of regulatory approaches for governing, not just plastics circularity, but complex challenges in general. A next step to further evolve this doctrinal analysis would be to test these findings in practice and understand the extent that reflexive environmental laws identified in these legislative acts manifest and the wider driving factors for this.