ANOTHER LOSS FOR THE PLASTIC BAG

February 18th, 2014

By: Chris Butcher



Following the overwhelming majority of courts that have upheld local laws regulating plastic bags, California’s First District Court of Appeal unanimously upheld San Francisco’s ban on plastic bags in Save the Plastic Bag Coalition v. City and County of San Francisco (2013) 222 Cal.App.4th 863.  The court found that the city complied with CEQA in enacting the law, and that the plastic bag ban was not preempted by California’s food safety laws.

In 2012, San Francisco enacted an ordinance imposing a 10-cent charge on single-use bags in all retail stores. In enacting the ordinance, the city relied on a categorical exemption from further CEQA review for regulatory actions to protect natural resources and the environment.

The Save the Plastic Bag Coalition filed suit, contending that the categorical exemptions did not apply, and even if they did, the unusual circumstances exception compelled the city to complete an EIR. The Coalition further contended that California’s Retail Food Code occupied the entire field of food safety laws including single-use plastic bags.

CEQA

Relying on a footnote in the California Supreme Court case Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, the Coalition claimed that the categorical exemptions could not apply to plastic bag bans in cities as large as San Francisco. The court rejected the argument, stating that the Coalition’s argument “stretched the bounds of reasonable advocacy.”  The footnote merely mentioned the hypothetical argument of the plaintiff in that case, and was in no way binding on all larger cities to require a comprehensive environmental review.

Additionally, the Coalition claimed that the categorical exemptions only applied to regulatory bodies, and not legislative bodies such as the city of San Francisco. The court rejected this argument, citing Save the Plastic Bag Coalition v. County of Marin (2013) Cal.App.4th 209, which resolved a similar argument by holding that legislative and regulatory actions are not always mutually exclusive.

Even if the categorical exemption applied, the Coalition claimed the exception for unusual circumstances that create a reasonable possibility an activity will have a significant effect on the environment applied. The court explicitly declined to determine whether the “substantial evidence” or “fair argument” standard of review applies to determine application of the unusual circumstances exception (a question currently being considered by the California Supreme Court). Instead, the court applied the lower “fair argument” standard and found that the Coalition did not even pass that test.

The Coalition first argued that millions of people travel and commute into San Francisco each day, only a small fraction of those people will carry a reusable bag, and the ones that do will underuse the bag and create greater harm to the environment by throwing it away prematurely.  The court rejected this possibility, stating that the Coalition’s unsupported conjecture about certain people not carrying bags and throwing away bags prematurely did not meet the Coalition’s burden.

The Coalition also relied on studies to argue that, over the life cycle of a bag, the plastic bag is actually better for the environment than paper or reusable cloth bags.  The court found that the studies did not constitute substantial evidence of a fair argument that the ordinance would have a negative impact on the environment. The court found that the global studies cited by the Coalition were too indirect and uncertain; the studies assumed that the ordinance would result in harm from an increase in the use of certain types of bags, and failed to examine with precision an ordinance adopted to address specific environmental goals in a specific locality.

PREEMPTION

The court also rejected the Coalition’s argument that the Retail Food Code preempted the city from adopting the plastic bag ordinance. The Retail Food Code states that only the Legislature can adopt health and sanitation standards for retail food facilities. The court noted that the plastic bag ordinance was not a food safety ordinance, and that the Legislature did not intend to preempt local regulation of every subject mentioned in the Retail Food Code. Although the Retail Food Code addresses single-use articles including bags, it does not occupy the field on environmental standards for bags.

KEY POINT

Courts continue to uphold the validity of plastic bag bans in municipalities of all sizes in California. The court resolved the question left open by the California Supreme Court in Save the Plastic Bag Coalition v. City of Manhattan Beach regarding the significance under CEQA of a large city enacting a plastic bag ban, holding that the categorical exemptions for regulatory actions to protect natural resources and the environment apply regardless of the city’s size.