San Francisco's Expanded Plastic Bag Ban Upheld by Court of Appeal

The San Francisco Board of Supervisors adopted its current checkout bag ordinance in early 2012, in the face of opposition from a group representing plastic bag manufacturers - which threatened to sue.  The current ordinance expanded the scope of SF's original plastic bag ban that had applied only to supermarkets and large pharmacy chains to 1.) include every retailer and restaurant in the city and 2.) add a 10-cent charge for other checkout bags provided at the register.

Save the Plastic Bag Coalition, a group backed primarily by plastic bag manufacturers, then sued San Francisco claiming that the ordinance required an Environmental Impact Report (EIR) and that the inclusion of restaurants was preempted by the California Retail Food Code.  This lawsuit was no surprise to the city, because SPBC has busied itself with suing countless other California cities demanding EIRs - an enterprise that has failed to ultimately win any victories on the merits but has succeeded in delaying the adoption of several bans around the state.

San Francisco was victorious on all counts at the superior court level and the Court of Appeal affirmed the lower court's judgement in a lengthy unpublished opinion issued on Tuesday.  (Read the full opinion here.)

Two things made this case unique.

First, San Francisco relied on a categorical exemption, meaning that the city took the stance that not only was an EIR not needed, but the intermediate step of an Initial Study and resulting Negative Declaration was not needed either, because the ordinance so obviously was meant to protect rather than harm the environment and enough information was on record regarding this assertion.  San Francisco's choice to use a categorical exemption was not unprecedented - Marin County and San Lois Obispo County had done so as well - but San Francisco was the biggest city to do so.  LA County and the City of San Jose, among others, has opted for the time consuming and expensive EIR route which cost around $100K each and yielded voluminous studies showing that their ordinances were not likely to harm the environment before moving forward.

Having additional cities complete the exhaustive EIR process for a type of ordinance that has already been shown to be beneficial to the environment was seen by some as an extreme misuse of environmental policy as well as a partial victory for SPBC, because the more cities that used EIRs the more likely another city might be persuaded to think that they need to do so as well.  San Francisco's court victory may help other California cities feel comfortable moving forward with categorical exemptions.

Second, San Francisco was one of the few cities to include restaurants within the scope of it's ordinance.  The argument that the California Retail Food Code would preempt the ordinance at restaurants was so far out of left field that it required a lot more legal resources to fight than most cities were willing to muster.  The Court of Appeal affirmed the superior court's ruling that Code "does not occupy the field of environmental standard[s] for single use bags." San Francisco's city attorney was willing to take on the fight and won, so as a result maybe other cities will be willing to expand their ordinances to restaurants as well.

As of December 10, 2013, sixty-nine local plastic bag ordinances had been adopted in California covering ninety local jurisdictions and that number is likely to grow even faster as a result of this ruling.

For more information, please see Californians Against Waste's Plastic Bags: Local Ordinances webpage for the most up to date information about California's plastic bag ordinances, including links to the text of each ordinance.

For anyone familiar with the related SPBC v. Manhattan Beach case, here are a few gems from the San Francisco Court of Appeal opinion that references SPBC's "strained interpretation" (emphasis added):

In the present case, the Coalition’s reliance on Manhattan Beach is perplexing. The fact that the city of Manhattan Beach was able to enact its plastic bag ban without preparing an EIR certainly does not strengthen the Coalition’s position here. Furthermore, we find nothing in that opinion which supports the Coalition’s specific contention that the City cannot rely on a categorical exemption in this case because it is larger than the city of Manhattan Beach. Indeed, Manhattan Beach was not a categorical exemption case at all; during the second step of its CEQA inquiry the city conducted an initial review which resulted in a negative declaration. (Manhattan Beach, supra, 52 Cal.4th at pp. 161-162.) And, although the Manhattan Beach court was not asked to address any CEQA categorical exemption, it nevertheless observed that an alternative available to the city during the second stage of its CEQA review was to determine that the project was categorically exempt. (Id. at p. 171, fn. 8.)

The Coalition literally ignores these pertinent facts and, instead, bases its argument on an isolated phrase that appears in the Manhattan Beach opinion. According to the Coalition, when the Manhattan Beach court used the term “comprehensive environmental review” in its written decision, it made a ruling that “a comprehensive environmental review” would be required before a plastic bag ban could be adopted by any city larger than Manhattan Beach. (Manhattan Beach, supra, 52 Cal.4th at p. 174, fn. 10.) And, the Coalition reasons, since a comprehensive environmental review necessarily “precludes categorical exemptions,” Manhattan Beach necessarily precludes the City of San Francisco from relying on a categorical exemption.

As reflected in our summary of Manhattan Beach, the court used the phrase “comprehensive environmental review” when describing (and rejecting) the Coalition’s argument that the ordinance would have negative cumulative impacts. In a footnote, the court stated that “According to plaintiff, the movement to ban plastic bags is a broad one, active at levels of government where an appropriately comprehensive environmental review will be required.” (Manhattan Beach, supra, 52 Cal.4th at p. 174 and fn. 10.) Thus, contrary to the Coalition’s theory on appeal, the term “comprehensive environmental review” was not any part of the holding of Manhattan Beach. Indeed, in our opinion, the Coalition’s strained interpretation of this quoted sentence stretches the bounds of reasonable advocacy.