Green Cities California plastic bag ban toolkit (for California cities)
In the wake of the defeat of AB 1998, Green Cities California has been hard at work facilitating the adoption of local plastic bag bans, including creating a mater environmental assessment and developing this model ordinance for California cities. We are supportive of the model ordinance except for two main problems: 1.) the model ordinance does not require that reusable bags be machine-washable and 2.) the model ordinance does not require that stores charge a minimum amount (e.g. 10 cents) for reusable bags. These missing elements would allow for thick plastic bags to still be given away for free under the model ordinance and could lead to problems similar to those under San Francisco's original ordinance, as discussed here. Other than that, the model ordinance is a great idea for California cities. For cities outside of California, this is probably not the best model ordinance. Due to lobbying by the plastics industry in Sacramento, California cities have limited options and cannot impose charges on plastic checkout bags. Most jurisdictions outside of California may instead opt to adopt an ordinance more similar to Washington DC's successful charge on all single-use carryout bags (paper and plastic).
The message below is from an email from Green Cities California. Please keep in mind that this message was disseminated prior to both the passage of Prop 26 and the adoption of Los Angeles County's bag ordinance.
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Dear Green Cities California members and Bag Ban Stakeholders,
In the wake of the defeat of AB 1998, Green Cities California (GCC) has been working closely with the statewide Clean Seas coalition of NGOs, and the CA Grocers and Retailers Association on the development of a statewide strategy to reduce single use bags. Even though the plastics industry successfully derailed AB 1998, cities and counties can respond locally by enacting the same model ordinance, based on AB 1998 language. We are proposing to do what the California Senate simply couldn’t get done.
The Grocer’s Association is keenly interested in uniform language across the state (which AB 1998 would have offered). But since we didn’t get AB 1998, the next best thing is for as many jurisdictions as possible to adopt the exact same ordinance. The Grocer's Association has indicated support of the language in this model ordinance. Over 40 jurisdictions have indicated to me that they are interested in restricting bags, so here’s your chance to work in coordination with your colleagues in other parts of the state.
Here’s how this strategy would work: Your jurisdiction can participate by adopting the attached local ordinance, which is based on the fully negotiated language of AB 1998. This language has been vetted by representatives from Green Cities California, Clean Seas Coalition, and the CA Grocers and Retailers Associations. The only significant difference between this ordinance and AB 1998 is that the ordinance definition of stores covers all retail, not just large grocery stores, pharmacies and convenience stores. So basically, all retail establishments would be prohibited from dispensing single use plastic bags (few use these bags anyway) and would have to charge a fee for single use paper bags, which would incentivize shoppers to bring their own bags.
The model local ordinance we are encouraging you to adopt is attached, and would ban single-use plastic bags, and put a fee on paper bags. Links to supporting materials, including draft EIRS for San Jose, Santa Monica, and LA County are also included under Bag Ban Toolkit, below. You can also find a section on Legal Considerations below.
Please let me know ASAP if your jurisdiction is interested in participating in this statewide strategy and is willing to adopt this ordinance. And also let me know if your Mayor, or a City Council or Board of Supervisor member would be interested in participating in a phone conference that will be set by Governor Schwarzenegger's office soon in support of this effort.
Thank you! Working together, we can finally get this done! Call me if you’d like to discuss.
Carol
415/388-5273
BAG BAN TOOLKIT
1. Attached ordinance.
2. San Jose Draft EIR (July 2010):http://www.sanjoseca.gov/planning/eir/SingleUseBagBan/SINGLE-USE%20CARRYOUT%20BAG%20ORDINANCE.pdf
3. Santa Monica Draft EIR (June 2010):http://www.smgov.net/uploadedFiles/Departments/OSE/Home_Page_Item_with_Image/SM%20Carryout%20Bag%20Ordinance%20Draft%20EIR.pdf
4. Santa Monica Nexus Study on Fees for Paper Bags is an appendix to the above Santa Monica EIR. (It can be emailed separately upon request--large file).
5. Master Environmental Assessment on Single Use and Reusable Bags: http://greencitiescalifornia.org/sites/all/modules/greencities_library/images/MEA.Single%20Use%20Bags.pdf
6. LA County Draft EIR: http://dpw.lacounty.gov/epd/plasticbags/pdf/DEIR.pdf
7. Clean Seas Coalition members are also an excellent resource for assistance with your ordinance, and may be able to provide fact sheets ("The True Cost of Single-Use Bags"), testimony, and additional information and support. Check www.cleanseascoalition.org for a Clean Seas partner near you.
LEGAL CONSIDERATIONS
A coalition of plastic bag manufacturers have sued some of the municipalities that have adopted plastic bag bans. The suits claim the ordinances are “projects” subject to CEQA and aim to force municipalities to spend money on Environmental Impact Reviews (EIRs).
While many NGOs and municipalities do not believe that plastic bag bans are subject to CEQA, some cities have decided to conduct Environmental Impact Reports under CEQA. These include the City of San Jose, the County of Los Angeles and Green Cities California (a consortium of municipalities).
Recently, the California Supreme Court agreed to hear the City of Manhattan Beach’s appeal of the lower and appellate court decision requiring they prepare an EIR for their plastic bag ban ordinance. We remain hopeful that the Supreme Court will agree that plastic bag bans are not a CEQA project and cannot reasonably be expected to increase pollution. Should the Supreme Court side with Manhattan Beach, local governments should be free from fear of future industry intimidation lawsuits if they ban plastic bags without an EIR.
In the meantime, local governments may be able to comply with CEQA without preparing an EIR by either 1) adopting a Negative Declaration or a Mitigated Negative Declaration; or 2) adopting a Categorical Exemption. A Negative Declaration asserts that, based on an initial study, the ordinance will result in no environmental impacts. A Mitigated Negative Declaration asserts that, based on an initial study, there are some negative environmental impacts, but that mitigation factors can be incorporated to address them. A Categorical Exemption is the easiest route, and asserts that that there is an actual net benefit in adopting the ordinance, and no corresponding environmental impact. Be sure to check with your jurisdiction’s attorney to further explore these options.
Other legal resources and support may be found with the relevant League Of California Cities (legal) list serve, as well as the City Attorneys for the cities that have implemented or begun to implement ordinances to date: San Francisco, Santa Monica, Manhattan Beach, City of San Jose, County of Los Angeles, Malibu, Palo Alto, Fairfax. The Master Environmental Assessment for single use and reusable bags can provide substantial text for an EIR, and can be found on Green Cities California website at http://greencitiescalifornia.org/mea.