In Save the Plastic Bag Coalition v. County of Marin, 2013 Cal. App. LEXIS 588, the Court of Appeal for the First Appellate District affirmed denial of a petition for writ of mandate challenging a county’s adoption of an ordinance banning single-use plastic bags.
In January of 2011, the Marin County Board of Supervisors (“Board”) adopted a proposed ordinance banning single-use plastic bags and requiring a fee for paper bag use at specified retail establishments in order to promote greater use of reusable bags by the public. In adopting the ordinance, the Board determined the ordinance was categorically exempt from CEQA pursuant to CEQA Guidelines sections 15307 and 15308 (regulatory action designed to assure the maintenance, restoration, enhancement, or protection of natural resources and the environment).
Appellant filed a petition for a writ of mandate ordering the County to set aside the ordinance for non-compliance with CEQA and sought a declaration that State law preempted the ordinance. Appellant argued the ordinance was not categorically exempt from CEQA because, based on a “life cycle” assessment, reusable and paper bags have a greater negative effect on the environment than plastic bags.
The First Appellate District held the California Supreme Court’s decision in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, did not support the need for an EIR in this case. The court there held open the possibility that a plastic bag ban resulting in a significant increase in paper bag usage could trigger the need for an EIR. Appellant contended that, due to Marin County’s large size and population, the ordinance would lead to a significant increase in paper bag use, and therefore an EIR should be prepared. The court noted that because the ordinance at issue here only applied to unincorporated parts of Marin County, it would affect a much smaller number of retailers than the Manhattan Beach ordinance. The court next addressed appellant’s contention that a categorical exemption could never be used for a plastic bag ban because a “blanket” exemption of that sort would preclude an EIR under all circumstances, contrary to the Manhattan Beach decision; the court pointed out that, in referencing “blanket” exemptions, appellant was actually describing statutory exemptions, not categorical exemptions, which allow for exceptions.
Appellant then argued that the exemptions the County relied on related to regulations, which should be read narrowly to mean administrative regulations implementing an existing law. The court rejected that argument, noting that it was unaware of any authority supporting the claimed distinction between legislative and regulatory actions in the context of CEQA exemptions.
In considering whether the unusual circumstances exception to the categorical exemptions applied, the court stated that appellant focused its argument on establishing that plastic bags were not as environmentally harmful as suggested by the County, but had not actually attempted to show that the County lacked evidence to support its contention that the plastic bag ban would preserve and enhance the environment. As such, the court deemed that issue forfeited.
In reaching its holding, the court noted a split of authority regarding the standard of review to be applied in reviewing an agency’s determination as to whether a project fell within an exception to a categorical exemption (“fair argument” test versus “substantial evidence” test), but stated that such a determination was unnecessary in this case since it would not change the outcome.
In reliance on supporting evidence and absent unusual circumstances, local jurisdictions with relatively small populations can likely find that a proposed plastic bag ban is categorically exempt from CEQA under a Class 7 and/or Class 8 exemption.