Court approves extension of San Francisco bag ban, coalition plans appeal

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SAN FRANCISCO (Sept. 19, 1:15 p.m. ET) — The extension of the 5-year-old plastic bag ban in San Francisco to all retail establishments has gotten the OK from a lower court to go into effect next month, as scheduled.

But Stephen Joseph, attorney for the Save the Plastic Bag Coalition, said Sept. 19 that he will take the case to the First District Court of Appeals in San Francisco, where the coalition also has a lawsuit pending against a Marin County plastic ban bag.

“We are appealing” the San Francisco plastic bag court ruling, Joseph told Plastics News after the Superior Court of California for the County of San Francisco denied the coalition’s request, at a hearing Sept. 18, to stay the San Francisco ordinance.

“The judge failed to apply the law,” he charged.

Just the week before, that same Superior Court had denied the coalition’s petition to have the ordinance overturned. The coalition includes among its members bag manufacturers Command Packaging in Vernon, Calif., and Crown Poly Inc. in Huntington Beach, Calif.

The coalition had argued that San Francisco had not conducted an environment impact report (EIR), as required under the California Environmental Quality Act.

In addition, the coalition said the California Retail Food Code “prohibits cities and counties from legislating any aspect of the design of, or materials used, to make carryout bags provided by restaurants and other food facilities.”

“The legislative history of the Retail Food Code and the text of the statute confirm that restaurant carryout bags are not subject to local laws,” Joseph said in a statement issued Sept. 14, after the court denied the coalition’s request to overturn the ordinance. The code also prohibits a restaurant or other food facilities from placing food in a reused reusable bag, he said.

“The San Francisco ruling does not reflect the law and is inconsistent with the state Supreme Court ruling on EIRs last year that upheld a plastic bag ban in Manhattan Beach,” Joseph said.

The coalition contends the state Supreme Court ruling last year in the Manhattan Beach case said that comprehensive environmental impact reports will be required in cities and counties with populations larger than Manhattan Beach (33,000) before enacting plastic bag bans.

Specifically, the Supreme Court said was that its analysis in the Manhattan Beach case of whether an EIR is necessary to enact a plastic bag ban would vary under different circumstances.

“The analysis 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,” the court said in its ruling. In addition, the court said “cumulative impacts [of bans] should not be allowed to escape review when they arise from a series of small-scale projects.”

“We will continue to demand EIRs in accordance with the Supreme Court’s clear ruling. We are very confident of winning the case on appeal,” said Joseph. “We believe that our legal claims are 100 percent valid and watertight, notwithstanding the adverse ruling by the court.”

The Superior Court never discussed the Manhattan Beach case during the proceedings even though the coalition made a written request to the court to discuss it. Sources said the coalition does not intend to back off in any way in the aftermath of the Superior Court of San Francisco ruling because it believes its legal case is very solid.

San Francisco has argued that an EIR was not needed before it passed its new plastic bag law this past February because the law is intended to protect the environment.

“We do not believe that there is any such green loophole,” said Joseph. “Environmental greenness is in the eye of the beholder. If another city banned paper bags and reusable bags and only permitted plastic bags, environmental organizations would protest.”

However, based on the San Francisco Superior Court ruling, Joseph said: “Environmentalists would have no recourse [in such a situation] under CEQA. The city would not be required to prepare a single environmental document or any environmental analysis.”

Based on the ruling of the San Francisco court, “as long as the city claims that the ordinance is for the protection of the environment, it can exempt itself from CEQA,” Joseph said. “The effect of such a green loophole would be to prevent the disclosure to the public and decision-makers of the unintended negative environmental impacts of green ordinances.”

Still, the two Superior Court rulings now give San Francisco, at least temporarily, the green light to extend its ban on plastic bags — the nation’s first when it was passed in 2007 — to all retail establishments Oct. 1 and then to all restaurants starting next July. In addition, San Francisco businesses will now be required to charge consumers 10 cents for each paper or compostable plastic bag they hand out at checkout.

Nationwide, the number of communities in the U.S. with plastic bag bans now total 81, nearly half of them in California. That could increase to 82 if the city council of Homer, Alaska on Sept. 24 overrides the mayoral veto of its ban on single-use plastic bags that was passed in late August.

Plastic bag bans are now in place in five of the 29 largest cities in the United States—-San Francisco; San Jose; Austin, Texas; Seattle and Portland, Ore.

In addition, the nation’s fourth-largest city, Houston, is currently considering a bag ban proposal, and Los Angeles—the nation’s second-largest city with a population of 4 million—this summer set in motion a plan to ban plastic bags.

The Save The Plastic Bag Coalition—which has been fighting plastic bag bans in California since it was formed in 2008—also is seeking to overturn plastic bag bans in the city of Santa Cruz, Marin County and San Luis Obispo.

In its lawsuit filed Sept. 7 in Santa Cruz County Superior Court against the city-wide Santa Cruz ban, the coalition said the city did not conduct an EIR as required under CEQA and that applying the ban to restaurants is a violation of state laws governing carryout bags for food establishments.

Joseph noted that the Santa Barbara Superior Court ruled earlier this year that a plastic bag ban in Carpinteria could not be applied to restaurants and other food facilities.

“The San Francisco Superior Court has ruled that the Retail Food Code does not preempt the San Francisco ordinance with respect to restaurants and other food facilities, because the purpose of the [San Francisco] ordinance is environmental,” said Joseph. “This is the polar opposite of the Santa Barbara Superior Court’s ruling.”

In that ruling, the Santa Barbara court said that the Carpinteria ordinance “provides standards for materials used in statutorily defined ‘single-use articles’ that are different from the standards provided in the Retail Food Code.

“Consequently, the Retail Food Code and the ordinance contain overlapping standards for acceptable materials used in making ‘single use articles,’ ” the court said.

“The court concludes that plaintiff has alleged a substantial controversy as to whether the ordinance is in some part preempted by the Retail Food Code,” said the ruling. “Plaintiff has therefore adequately alleged a cause of action for declaratory relief and the city’s [objection] will be overruled.”

However, the Santa Barbara Court did not rule on the actual merits of the case.

“The court must emphasize that city’s [objection] raises the issue only of whether or not plaintiff has alleged a judicially recognizable cause of action. The court’s determination that plaintiff has sufficiently alleged a cause of action does not determine whether plaintiff is ultimately entitled to a favorable declaration,” the court said.