Save the Plastic Bag group to appeal Marin County, Calif., bag ban

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WASHINGTON (Sept. 29, 3 p.m. ET) — The Save the Plastic Bag Coalition says it will file an appeal with the First District California Court of Appeal in its continuing effort to overturn the single-use plastic bag ban for unincorporated areas of Marin County that is scheduled to go into effect Jan. 1.

The recent decision by Marin County Superior Court Judge Lynn Duryee to uphold the ban “flies in the face of the California Supreme Court’s recent decision” in the Manhattan Beach plastic bag lawsuit, which said that communities were not exempt from a state law that requires an environmental impact report (EIR), said Stephen Joseph, counsel for the Save the Plastic Bag Coalition.

That Supreme Court ruling, handed down July 14, upheld the plastic bag ban in Manhattan Beach — which has a population of 35,000 — but also said the court’s analysis and its decision on whether a community could enact a ban without an EIR could be different in areas with larger populations. The population in unincorporated areas of Marin County is estimated to be between 80,000 and 85,000.

“The analysis [made by the court] would be different for a ban on plastic bags by a larger governmental body [as it] might precipitate a significant increase in paper bag consumption,” said the state Supreme Court in its Manhattan Beach ruling. In addition, the court said that “cumulative impacts [of bans] should not be allowed to escape review when they arise from a series of small-scale projects.”

Nevertheless, Judge Duryee turned down the request by the Save The Bag Coalition for a restraining order on the Marin County ban, and ruled that Marin County could rely on a “categorical exemption” from the California Environmental Quality Act requirements for an EIR.

“The court finds the county acted reasonably in enacting the ordinance and was entitled to rely” on a ‘categorical exemption’ from CEQA” in enacting its ban because the ordinance protects the environment, Duryee wrote in her decision, handed down Sept. 14.

“Eliminating single-use plastic bags is a valiant and important move to protect the environment and enhance natural resources,” wrote the judge. “It does not do away with the problem of single-use paper bag. ... But it is an urgent and correct first step. The court finds the county acted appropriately in eliminating single-use plastic bags.”

“We are thrilled that the judge agreed with the county that its bag ordinance is categorically exempt from CEQA review,” said Carol Misseldine, head of Green Cities California, a coalition of 13 local governments working together toward sustainable public policies and practices.

But even with the Marin County Superior Court ruling that that Marin County did not needed to conduct an EIR for its plastic bag ban, it is likely that many California communities will proceed to conduct an environment review ahead of time to assess the impact from a plastic bag ban, said Mark Murray, executive director of the Sacramento-based Californians Against Waste.

“Whether they need to or not, virtually all of the ‘large jurisdictions’ in California that have or are contemplating plastic bag bans are already committed to an environmental review,” said Murray, since the California Supreme Court ruling in Manhattan Beach only said that its analysis could be different depending on the size of the jurisdiction and didn’t specify what size communities had to conduct EIRs.

“Each case turns on its own evidence,” said Murray.

He also pointed out that as far as he can ascertain “every jurisdiction — large and small” that is considering a plastic bag ban “is including [in the proposal] some measure to discourage single use paper bags" — either deposits or a charge or fee of 5-10 cents for each paper bag handed out.

“Within the next 12-18 months—regardless of any further court action on CEQA, we believe that single-use plastic grocery bags will be prohibited in 50-60 percent of California,” said Murray. “At that point I suspect it will be retailers more than environmentalists clamoring for a uniform statewide ban.”

Joseph disagreed.

“By ruling that Marin County could rely on ‘categorical exemptions,’ the Marin court is saying that a plastic bag ban is not the type of project that requires compliance with CEQA,” he said. “We will obviously appeal the Marin court’s decision.

“Fortunately, the Court of Appeal will decide the issue de novo [that is, from the beginning] based on the Supreme Court’s decision and without regard to the ruling of the Marin court,” Joseph said.

He also cautioned legislators in cities and counties in California “not to assume that the Marin decision is reliable guidance” and urged them to “follow the Supreme Court’s ruling.”

“If necessary, we will litigate against cities and counties to enforce the ruling of the Supreme Court,” Joseph said.

"An appeal of the Marin plastic bag ban, whether successful or not, will not slow the end of single use plastic grocery bags in California."

The Marin County ban on plastic checkout bags in unincorporated areas of the county is scheduled to go into effect Jan. 1, along with a 5-cent fee on paper bags.

Altogether, 29 U.S. communities, including 10 cities and four counties in California, have plastic bag bans. Two other communities — Montgomery County, Md., and Washington, D.C. — have a 5-cent tax on plastic and paper carryout bags.