California Litigation Update – City of Carpinteria Sued by SPBC Over Retail Food Code But Not CEQA
Save the Plastic Bag Coalition v. City of Carpinteria – Carpinteria’s ordinance bans both paper and plastic bags and was adopted pursuant to a categorical exemption. Carpinteria was not sued under CEQA – the complaint only addresses SPBC’s state retail food code preemption argument. This is the first jurisdiction since San Francisco’s original ordinance where a single-use bag ordinance was adopted pursuant to a categorical exemption and the city was not sued under CEQA. No hearing has been scheduled yet.
Other pending litigation in California:
Schmeer v. LA County – (Hilex Poly’s Prop 26 lawsuit) – This was a test case for whether (and to what extent) Prop 26 regulates the paper bag charge included in second generation single-use bag ordinances. On March 23, 2012, the Court ruled that the 10-cent charge on paper bags was not a tax under the California Constitution because the retailers keep all of the money collected pursuant to the ordinance, and even if the paper bag charge was a tax it would fall within the first exemption to Prop 26. An appeal is expected.
Save the Plastic Bag Coalition v. Marin County – Marin County recently filed its respondent’s brief for SPBC’s appeal of the Marin County ordinance. This means that in a few months there will be an appellate level hearing on whether it was appropriate for Marin County to use a categorical exemption (rather than an EIR or negative declaration) to adopt its second generation single-use bag ordinance (a ban on plastic and charge for paper). Marin won at the superior court level and, in my opinion, Marin is likely to prevail at the appellate level. No hearing has been scheduled yet.
Save the Plastic BagCoalition v. San Luis Obispo Integrated Waste Management Authority – This case will also test whether a categorical exemption is sufficient under CEQA to adopt a second generation single-use bag ordinance. The hearing is set for March 22nd has been continued to a date TBA.
Save the Plastic Bag Coalition v. Santa Cruz County - Santa Cruz County agreed to remove restaurants from its single-use bag ordinance in exchange for SPBC’s dismissal of the entire lawsuit, which also included CEQA and constitutional claims. The County’s ordinance as to retailers remains in effect.
Save the Plastic Bag Coalition v. City and County of San Francisco – This is another test case as to whether a categorical exemption is sufficient under CEQA to adopt a second generation single-use bag ordinance. This case will also test SPBC’s state retail food code preemption argument. No hearing has been scheduled yet.