May 20, 2012
On May 14th, Fort Bragg became the 48th California municipality to adopt a plastic bag ordinance.
Here is the list of current California plastic bag ordinances maintained by Green Cities California. The list is up to date except for the Fort Bragg ordinance and demonstrates the incredible momentum at the local level in California.
Up next: Los Angeles City hearing May 23rd. Here is information on Heal the Bay’s Rally to Support LA City Council’s Bag Ban scheduled for before the hearing.
May 6, 2012
Below is a summary of pending litigation in California:
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 filed a Demurrer to the Complaint, which means that a superior court ruling will be issued soon that, if favorable, could make other cities more comfortable with including restaurants. This case is also particularly interesting because it does not involve a CEQA claim. A hearing on the Demurrer is set for May 15, 2012 at 9:30 a.m.
Schmeer v. LA County – (Hilex Poly’s Prop 26 lawsuit) – Hilex Poly recently filed a Notice of 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. 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. (See extended case summary here.)
Save the Plastic Bag Coalition v. Marin County – The appellate case has been fully briefed with the exception of SPBC’s Reply to Californians Against Waste’s Amicus Curiae Brief (due May 14th). 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. No hearing has been scheduled yet.
May 5, 2012
As expected, Hilex Poly appealed the superior court decision in the Prop 26 case regarding LA County’s plastic bag ordinance. So far only a Notice of Appeal has been filed.
The superior court decision denied Hilex Poly’s Writ – thereby upholding LA County’s plastic bag ordinance. The Court found 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.
As mentioned in a previous post, here’s a great summary of the case from LA County’s Opposition brief:
This lawsuit is a last ditch effort by the plastic industry to invalidate a Los Angeles County ordinance banning plastic bags from the unincorporated areas. Orchestrated by Hilex Poly, a large plastic bag manufacturer in South Carolina, Petitioners’ contend that the subject ordinance is an unconstitutional tax measure under Proposition 26, premised upon the County’s “deputizing” of retail stores as the County’s tax collector. Petitioners hope to persuade the Court that one provision in the ordinance is an illegal tax on paper bags and as a result, the entire ordinance should be stricken. Ironically, Petitioners do not manufacture paper bags; rather, their motivation in the lawsuit is the hope that this Court will take the the extraordinary step of invalidating the entire ordinance including its provision banning plastic bags. If that happens, Petitioners return to selling plastic bags in the County’s unincorporated areas, while the County, its taxpayers, and the environment, shoulder the burden resulting from the negative impacts of plastic bag litter. (p. 2)
Along with this tidbit – also from LA County’s Opposition brief:
The Complaint for Writ of Mandate also names four “taxpayers,” most of whom appear to make, sell or distribute plastic bags. Lee Schmeer and Salim Bana are employees of Hilex Poly. (p. 2, fn. 2)
March 28, 2012
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.
March 23, 2012
At the hearing on the Writ of Mandate this morning, Hon. Judge James Chalfant adopted his tentative decision to deny Hilex Poly’s Writ – thereby upholding LA County’s plastic bag ordinance.
The Court found 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, but this is a great first test case for Prop 26 and is encouraging for California cities moving forward with second generation plastic bag ordinances.
March 15, 2012
The hearing on Hilex Poly’s Lawsuit against LA County’s plastic bag ordinance was continued to March 23rd.
The case briefs are posted on the LA County litigation page.
Here’s a great summary of the case from LA County’s Opposition brief:
This lawsuit is a last ditch effort by the plastic industry to invalidate a Los Angeles County ordinance banning plastic bags from the unincorporated areas. Orchestrated by Hilex Poly, a large plastic bag manufacturer in South Carolina, Petitioners’ contend that the subject ordinance is an unconstitutional tax measure under Proposition 26, premised upon the County’s “deputizing” of retail stores as the County’s tax collector. Petitioners hope to persuade the Court that one provision in the ordinance is an illegal tax on paper bags and as a result, the entire ordinance should be stricken. Ironically, Petitioners do not manufacture paper bags; rather, their motivation in the lawsuit is the hope that this Court will take the the extraordinary step of invalidating the entire ordinance including its provision banning plastic bags. If that happens, Petitioners return to selling plastic bags in the County’s unincorporated areas, while the County, its taxpayers, and the environment, shoulder the burden resulting from the negative impacts of plastic bag litter. (p. 2)
Along with this tidbit – also from LA County’s Opposition brief:
The Complaint for Writ of Mandate also names four “taxpayers,” most of whom appear to make, sell or distribute plastic bags. Lee Schmeer and Salim Bana are employees of Hilex Poly. (p. 2, fn. 2)
Schmeer, et al. v. Los Angeles County, et al. (Hilex Poly Prop 26)
Los Angeles Superior Court, Case No. BC-470705
March 4, 2012
Visit the SF litigation page for details.
February 25, 2012
Below is a summary of pending litigation in California:
Save the Plastic Bag Coalition v. Marin County, et al. – SPBC recently filed the opening brief for its 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.
Schmeer v. LA County, et al. (Hilex Poly’s Prop 26 lawsuit) – This is a test case for whether (and to what extent) Prop 26 regulates the paper bag charge included in second generation single-use bag ordinances. After several continuances, the hearing on the Writ of Mandate is set for March 15th.
Save the Plastic Bag Coalition 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.
Save the Plastic Bag Coalition v. Santa Cruz County, et al. - Santa Cruz County has agreed to remove restaurants from its single-use bag ordinance in exchange for SPBC’s dismissal of the entire lawsuit.
February 7, 2012
Today, the San Francisco Board of Supervisors adopted the most comprehensive single-use bag ordinance in the Nation. The expanded ordinance applies to ALL retailers and restaurants and includes a ban on plastic bags and a 10-cent minimum charge on all paper and reusable bags provided at the register. The charge on reusable bags in addition to paper bags is particularly important so that no bags are given away for free at checkout. The ordinance was adopted by a unanimous 10-0 vote (Supervisor Campos was out sick).
This ordinance was originally up for vote in December 2011 but was continued to allow time for more outreach. At the hearing today, many of the Supervisors commended SF Environment for its unprecedented outreach efforts. President Chui also introduced amendments to assure that further multi-lingual outreach to store employees and customers will be conducted.
In 2007, San Francisco became the first city in the US to adopt a plastic bag ban. San Francisco’s ban currently only applies to supermarkets and large pharmacies. This is referred to as a “first generation” ordinance because it only addresses plastic bags. More recently, “second generation” ordinances that include a charge on paper bags have become standard in California. In 2010, Supervisor Mirkarimi introduced an expanded “second generation” ordinance, but that was tabled pending resolution of lawsuits in other cities regarding what type of review was required under the California Environmental Quality Act (CEQA). CEQA has been used as a tool by plastics industry groups in California to delay or overturn plastic bag ordinances by filing lawsuits against cities demanding that expensive Environmental Impact Reports (EIR) are required.
In July of this year, the California Supreme Court ruled on the Manhattan Beach case, finding that Manhattan Beach’s negative declaration was sufficient and that an EIR was not necessary. In September of this year, the Marin County Superior Court found that a categorical exemption was applicable to Marin’s ordinance. Part of the reason that Marin’s ordinance qualified for a categorical exemption was because it is a second generation ordinance that addresses paper as well as plastic by banning plastic bags and requiring a minimum 5-cent charge for paper bags. In the wake of these decisions, San Francisco made the decision to move forward with its expanded ordinance using a categorical exemption.
