Please join Jennie R. Romer, founder of plasticbaglaws.org & Atlantic region director of the Clean Seas Coalition, this Thursday at an ocean plastic pollution research event in NYC with 5 Gyres & Surfrider Foundation NYC. As part of their “5 Gyres Last Straw Plastic Pollution Bike Tour,” Stiv & Carolynn from 5 Gyres will be giving a great presentation on their work researching plastics in ocean gyres.
San Francisco, September 13, 2012 – In an order issued yesterday, San Francisco Superior Court Judge Teri L. Jackson rejected both of Save the Plastic Bag Coalition’s (SPBC) claims, which were brought under the California Environmental Quality Act (CEQA) and the California Retail Food Code. Thus, the first phase of implementation of San Francisco’s ordinance – which includes a ban on non-compostable plastic carryout bags and a minimum 10-cent charge on paper and reusable carryout bags at all retailers – is set for October 1st. Read the rest of this entry »
Plastic bag recycling bills are a tricky subject. Plastic bag recycling sounds like a nice environmentally-friendly issue. However, it really has questionable, if any, environmental value and distracts people from a more straightforward goal – source reduction of plastic bags. More importantly, state plastic bag recycling bills often include language that preempts local jurisdictions from passing local ordinances relating to plastic bags. For example, in California AB 2449 preempts local municipalities from charging for plastic bags (hence the plethora of local plastic bag bans in California). Read the rest of this entry »
AB 298, the current statewide single-use bag bill, passed the Senate Committee on Appropriations by a 5-2 vote on 7/2/12. The momentum generated by the adoption of ordinances covering 50 local jurisdictions in California has definitely helped to make progressing with the statewide bill possible. As introduced by Assemblymember Julia Brownley last year, AB 298 addressed how to define reusable bags. However, the updated draft introduced on 6/18/12 added bag ban language as well as plastic bag recycling requirements.
As you may recall, a previous statewide single-use bag bill (AB 1998) failed by only a small margin in 2010. (Click here for details.)
Keep and eye on AB 298 and show your support.
Below is a summary of pending litigation in California involving single-use bag ordinances:
Save the Plastic Bag Coalition v. City of Carpinteria– The sole basis of SPBC’s suit is that Carpinteria’s ordinance is allegedly preempted by the California Retail Food Code because it includes restaurants. Carpinteria recently decided to settle the lawsuit with SPBC by removing restaurants and small retailers from the scope of the ordinance due to “uncertainties of litigation” and paying attorneys’ fees to SPBC. (See staff report and local news article.) This was very unfortunate, but the California Retail Food Code issue is still being litigated in San Francisco Superior Court.
Schmeer v. LA County – (Hilex Poly’s Prop 26 lawsuit) – Hilex Poly recently filed its appeal to the superior court decision in favor of the County. This appeal was expected and the appellate case will be briefed in the coming months. 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. In March 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.
Save the Plastic Bag Coalition v. Marin County – The appellate case has been fully briefed. This means that the court of appeal will soon decide the issue of 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 prevailed at the superior court level. No hearing has been scheduled yet.
Save the Plastic Bag Coalition v. San Luis Obispo Integrated Waste Management Authority – This case will also test whether a categorical exemption was 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. City and County of San Francisco – This is another test case as to whether a categorical exemption was 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. SF prevailed on SPBC’s request for a preliminary injunction at a June 1st hearing. The ruling on SF’s Demurrer heard 6/28/12 is still pending. The hearing on the CEQA claim is scheduled for 8/27/12 at 9 a.m.
Below is a summary of pending litigation in California involving single-use bag ordinances:
Save the Plastic Bag Coalition v. City of Carpinteria– The sole basis of SPBC’s suit is that Carpinteria’s ordinance is allegedly preempted by the California Retail Food Code because it includes restaurants. Carpinteria recently decided to settle the lawsuit with SPBC by removing restaurants and small retailers from the scope of the ordinance due to “uncertainties of litigation” and paying attorneys’ fees to SPBC. (See staff report and local news article.) This was very unfortunate, but the California Retail Food Code issue is still being litigated in San Francisco Superior Court.
Schmeer v. LA County – (Hilex Poly’s Prop 26 lawsuit) – Hilex Poly recently filed its appeal to the superior court decision in favor of the County. This appeal was expected and the appellate case will be briefed in the coming months. 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. In March 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.
Save the Plastic Bag Coalition v. Marin County – The appellate case has been fully briefed. This means that the court of appeal will soon decide the issue of 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 prevailed at the superior court level. No hearing has been scheduled yet.
Save the Plastic Bag Coalition v. San Luis Obispo Integrated Waste Management Authority – This case will also test whether a categorical exemption was 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. City and County of San Francisco – This is another test case as to whether a categorical exemption was 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. SF prevailed on SPBC’s request for a preliminary injunction at a June 1st hearing. The ruling on SF’s Demurrer heard 6/28/12 is still pending. The hearing on the CEQA claim is scheduled for 8/27/12 at 9 a.m.
Los Angeles County’s single-use bag ordinance went into effect at large retail establishments in unincorporated LA County on July 1, 2011. One year later, official reports show that overall single-use bag use was reduced by 95%, which includes a 30% reduction in single-use paper bags. (Click here and scroll down to the “Announcements” section.) LA County’s ordinance included a ban on plastic bags and a 10-cent charge for paper bags.
These reduction statistics show that second generation plastic bag bans, meaning those that ban plastic bags and either ban or put a charge on paper bags, are incredibly effective at achieving overall single-use bag reduction.
This law journal article was written primarily around November 2011 and is meant to provide background on plastic bag litigation and legislation in California. Since that time many more ordinances have been adopted, new lawsuits have been filed, and other lawsuits have progressed. Please use this article as a starting point only.
Jennie R. Romer & Shanna Foley
Golden Gate University Environmental Law Journal
5 Golden Gate Envt’l L.J. 377 (2012)
Download the press release here.
San Francisco, June 14, 2012 – In an Order issued yesterday, San Francisco Superior Court Judge Teri L. Jackson denied Save the Plastic Bag Coalition’s (SPBC) request for a preliminary injunction which would have stopped the city from preparing to implement its expanded single-use bag ordinance set to take effect October 1, 2012. With this ruling, the city can continue its preparations, including outreach to local businesses. Read the rest of this entry »
On Wednesday, the Los Angeles City Council voted to have city staff draft a plastic bag ordinance based on the LA County ordinance model, which includes a ban on plastic carryout bags and 10-cent charge for paper bags. The council set a four-month deadline for staff to draft the ordinance and related environmental impact documents.
This is a huge victory for the movement to reduce plastic bags because, at 3.8 million people, LA City is the second most populous city in the United States. Read more about the hearing in this LA Times article.
Save the Plastic Bag Coalition filed a Complaint against the City of Carpinteria alleging that Carpinteria’s inclusion of restaurants in its ordinance was preempted by the California Retail Food Code. (Click here for more information.)
Carpinteria then filed a Demurrer, which if successful would have ended the whole case because a demurrer raises the question of whether or not the Complaint has a judicially recognizable cause of action based on the limited information before the Court (i.e. what’s in the Complaint).
In its Final Decision, the court overruled the Demurrer and concluded that plaintiff could have sufficiently alleged a cause of action.
This does not mean that SPBC’s restaurant claim has merit, the court simply found that the claim could potentially have merit and more information was needed before a dispositive ruling could be made. The court was clear that the scope of the opinion is very limited.
