Plastic Bag Bans Likely to Spread, Regardless of Pending Lawsuit or Legislation

The California Senate last week approved legislation would establish the first statewide ban on single-use plastic bags in the country.  And it’s likely that other states – Texas included – will ultimately head that direction.

Dallas City Councilmember Dwaine Caraway recently introduced a proposed ban that, if adopted, it would become the fifth local ban in Texas, after AustinBrownsvilleFort Stockton and South Padre Island.  Numerous other cities have considered them, including ArlingtonCorpus ChristiDallasEl PasoLaredo and Houston.

In late February, just as the Austin ban was about to take effect, the Texas Retailers Association (TRA) brought a legal challenge.  Then State Rep. Drew Springer filed the so-called “Shopping Bag Freedom Act,” which would have prohibited local jurisdictions from banning single-use plastic bags.  Springer told the Dallas Morning News that the Austin act was “just the latest example of government elites trying to step between the business and consumer in an attempt to push forward a misguided nanny-state agenda.”

The TRA lawsuit is likely to fail, for reasons explained below, and Springer’s bill appears destined to die to in committee.  And it is fair to assume that some of the cities that have entertained bag bans (or that, like Fort Worth, have merely researched them) will move forward with ordinances that draw from the experiences of early adopters such as Brownsville and Austin.

All of this means there are betting odds that by the time the legislature convenes again – in the distant year of 2015 – more cities will have enacted bans.  While the regulations may share similarities, it is inevitable that local politics, shifting behavioral norms and evolving policy debates will breed variations.

The table below compares the Brownsville ban (the first in the state) with Austin’s (the most high-profile) and Dallas’ proposed ban (on track to become the newest).  There are subtle and not-so-subtle differences.

For carry-out foods, for instance, Brownsville requires paper bags (that are not necessarily recyclable), Austin requires recyclable bags (that are not necessarily made of recycled paper).  Dallas would allow recyclable bags (that are, again, not necessarily made of recycled paper) and even single-use plastic bags if needed “to prevent moisture damage.”

Likewise, the bans all allow retailers to dispense paper bags – but different kinds of paper bags.  In Brownsville, the bags must have a 65# weight.  In Austin, they must be recyclable (but need not be made from recyclable materials).  In Dallas, the bags would have to be made from recyclable materials (but not recyclable themselves).

 Comparison of   Select Texas Single-Use Plastic Bag Bans

 

City

Brownsville

(2010

Austin

(2012)

Dallas

(proposed)

Businesses   within Scope “Any   commercial establishment.”  No size   limits.  Profit or nonprofit. “Any   commercial establishment.”  No size   limits.  Profit or nonprofit but   exemption for nonprofit or “hunger relief” charity distributions. “Any   commercial establishment.”  No size   limits.  Profit or nonprofit but   exemption for nonprofit or charity distributions.
Reusable   Bag Standard Durable   material; plastic with at least 4.0 mil thickness; or paper with at least 65#   weight. All bags must have handles. Durable   materials; recyclable plastic with at least 4.0 mil thickness; or recyclable   paper. Bag exterior must indicate reusable/recyclable; all bags below certain   size must have handles. Durable   materials; recyclable plastic with at least 4.0 mil thickness; or paper with   at least 40% (later 80%) recycled content; and approved alternative   bags.  Bag exterior must indicate   reusable/recyclable; all bags below certain size must have handles.
Exemptions:
Convenience   Stores Paper   bags. None. None.
Medicines Exemptions   for pharmacies and veterinarians. Exemptions   for pharmacies and veterinarians but bags must be recyclable within Austin’s   muni recycling program. Exemptions   for pharmacies and veterinarians.  Must   be paper.
Liquor   Stories Paper   bag. None. None.
Restaurants Paper   bags for food carry-out. Bags   for carry-out but must be recyclable within Austin muni recycling program. Recyclable   paper bags for carry-out or single-use plastic bags “only where necessary to   prevent moisture damage.”
Beverages Paper   bags regardless of type of business. None   unless food exemption applies. None   unless food exemption applies.
Food Plastic   bags for “safety” of cooked, chilled or frozen food. Bulk   items; frozen food; flowers or “other items” that could sustain moisture   damage; unwrapped prepared foods or bakery goods Bulk   items; frozen food; flowers or “other items” that could sustain moisture   damage; unwrapped prepared foods or bakery goods
Laundry   bags Garment   bag exemption regardless of material type Dry   cleaning bags and door-hangar bags Laundry   bags and door-hanger bags exempt.
Garbage   bags None. Exempt Exempt
Newspapers Not   exempt. Exempt. Exempt
Fees Environmental   fee of $1 per plastic non-reusable bag. None. None.
Enforcement Penalties of at least   $1 per violation None. Penalty   not to exceed $500.
Hardship   Exceptions None. Potential   variance if compliance would “cause undue hardship based on unique   circumstances” or would “deprive … of a legally-protected right.” Potential   variance if compliance would “cause undue hardship based on unique circumstances”   or would “deprive … of a legally-protected right.”

On one hand, these quirks reflect the virtues of a federal system that allows for a certain level of responsiveness to local concerns.  On the other hand, it is enough to give businesses that operate in those and other jurisdictions whiplash.

In California, where bag bans originally took root, there are at least 51 local ordinances.  The California Grocers Association came out in support of the proposed state ban this week.  The LA Times reported: ‘Ron Fong, president of the California Grocers Assn., said his 400 members back Padilla’s bill because it provides “consistency and predictability for consumers.’ Complying with dozens of slightly different city and county laws is complicated and expensive, he said.”

In Texas, bills have been introduced in each of the last three legislative sessions that would have established statewide parameters for local bans.  In 2009, state Rep. Rafael Anchia sponsored a bill that would have imposed a seven-cent fee on each disposable plastic bag.  That same session, state Sen. Leticia Van de Putte backed a bill (and state Rep. Ana Hernandez Luna authored a companion bill) that would have required large retailers to operate bag recycling programs and offer reusable bags for sale at checkout.  That bill would have expressly preempted conflicting local ordinances, which could have been interpreted to encompass ordinances that banned or restricted single-use plastic bags.

In 2011, state Sen. Troy Fraser and then-state Rep. Kelly Hancock sponsored similar legislation.  Fraser explained to the Texas Tribune that his bill was intended to ease the “transition” from widespread usage of plastic bags to an eventual ban: “We’ve got plastic bags in the system and we’re moving toward trying to eliminate them.”

As with the Van de Putte/ Hernandez Luna bill, there was a concern that a statewide regulation would preempt local regulations.  For that reason, environmentalists (who have generally supported bag bans) opposed the legislation.  And interests that would be burdened by local bans may have taken comfort.

This session, the only bag legislation on the table is the Springer bill, which has attracted considerable popular attention but was probably doomed from the start since it impinged on the rights of local governments and ran against heavy policy headwinds.

Although critics have questioned the environmental merits of bag bans, and even supporters have recognized their limits, the march of tighter single-use bag restrictions seems unstoppable.  More than 20 countries have passed national bans (starting with Bangladesh in 2002 and including China since 2008), as have cities large (Rio de Janeiro, Delhi) and relatively small (Fairbanks, Tucson).  And the trendsetter in Texas bag policy – Brownsville – is not a city with resources to throw after pet environmental causes.  (For an incredible overview of jurisdictions with bans, see this article from the founder of Plasticbaglaws.org.)

Given this, it seems that even with all the hoopla around the Springer bill, legislation like that currently winding through the California legislature is more likely to pass in Texas – and probably will pass in a coming session, if not in 2015, then perhaps in 2017 or 2019.

TRA Litigation

Lawmakers will have added impetus to pass such a bill – and no doubt be lobbied heavily to do so – in the unlikely event that the TRA litigation succeeds.

In the late 2000s, as California cities implemented bag bans, industry opponents filed lawsuits accusing local governments of violating a state law that requires agencies to consider the environmental impacts of their actions.  That is to say, an environmental law was being aggressively used to undermine environmental ordinances.

In a similar twist of irony, the TRA has sought a declaratory judgment order from the Travis County District Court invalidating the Austin ban (a waste-reduction ordinance) on the grounds that it violates the Solid Waste Disposal Act (a law intended in part to reduce solid waste streams).  Specifically, the TRA argues the ordinance conflicts with Texas Health and Safety Code § 361.0961(a): “A local government or other political subdivision may not adopt an ordinance, rule, or regulation to: (1) prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law.”

The TRA contends that a single-use plastic bag is a “container” within the meaning of the statute and that the ordinance was enacted for a “solid waste purpose” – as evidenced by the city’s finding that a ban would reduce the “solid waste stream.  TRA argues it was not “able to discover a single state law authorizing the banning of bags in any manner, let alone in the manner adopted by the City.”

The city answers that Section 361.0961(a) is an “obscure provision of the Solid Waste Disposal Act (SWDA) under a Chapter related to the permitting of solid waste facilities and hazardous waste facilities.”  According to the city, TRA is ignoring more relevant provisions of and the waste reduction purposes of the act.

No published opinions have interpreted the scope of § 361.0961.  In cases that have been decided on standing rather than substantive grounds, however, New Braunfels business owners have invoked the section in a similarly novel way, to challenge the validity of anti-litter ordinances that restrict the use of coolers on the Comal and Guadalupe rivers.  Coolers, in this line of attack, would constitute “containers.”

These arguments, like the ones that TRA makes, seem dubious.  Texas law accords great deference to home rule cities to manage local affairs.  Courts have found that state law will not preempt home rule regulations “if any other reasonable construction leaving both in effect can be reached.” City of Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202, 206 (1927).  The legislature can only limit home-rule powers when it demonstrates its intent to do so with “unmistakable clarity.”  Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998)

But Section 361.0961 does not reveal with “unmistakable clarity” an intention to preempt single-use bag regulations.  The legislature adopted Section § 361.0961 in 1993, when it amended the Solid Waste Disposal Act by passing SB 963.  There was a concern, according to a legislative analysis, that the state would eventually exceed its federally permissible landfill capacity unless it reduced its solid waste streams.  The purpose of bill was not all that different from Austin’s bag ban.

In fact, the bill included several findings encouraging entrepreneurial waste-reduction policies like the bag ban.  The legislature found, for instance, that “flexible and effective means of implementing and enforcing municipal solid waste laws should be provided” and “the actual cost of municipal solid waste disposal should be imposed by municipalities on those that place municipal solid waste in the solid waste stream in order to pay for infrastructure development and to encourage waste reduction from landfill.”

A related section of the Solid Waste Disposal Act – the Texas Health and Safety Code § 391.096 – provides that “[e]xcept as specifically provided by this chapter, this subchapter does not limit the powers and duties of a local government or other political subdivision of the state as conferred by this or other law.”  The act does not specifically restrict cities from regulating plastic bags, certainly not to the degree required in a space such as waste management where cities have traditionally shouldered much responsibility.

Of course, the words of Section 361.0961 could be clumsily shoehorned onto bag bans, as the TRA has attempted.  But the applicability of that section toward bans is so unclear and imperfect that none of the interest groups opposed to bag restrictions raised it in the half-decade over which local bag policies took form in this state.

In its petition, the TRA confesses that Section 361.0961 – which, if construed as the TRA wishes, could become a powerful restriction on the ability of local governments to pursue waste control strategies – was “unknown to the City and the [TRA] when the Ordinance was enacted.”  This late-blooming discovery further suggests that Section 361.0961 does not clearly or specifically preempt and that any ambiguity should be resolved in favor of Austin.

The Texas Civil Practice and Remedies Code requires, in Section 37.006, that in a proceeding that alleges a municipal ordinance is unconstitutional, the state attorney general must be given the option of participating as a party.  The attorney general declined to join in the New Braunfels cases.  How it engages the TRA case would influence the case and more broadly could send a signal about the authority that local governments are believed to have to manage their waste reduction efforts.

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