The Second District Court of Appeals in Los Angeles has struck a serious blow to communities looking to implement plastic bag bans in California.
The court ruled Jan. 27 that Manhattan Beach should have conducted an environmental impact report before it passed the city's never-implemented ban on plastic bags in 2008.
The ruling came on an appeal by Manhattan Beach of a lower court's decision from February 2009. The Superior Court of Los Angeles County had overturned the city's bag ban after the Save the Plastic Bag Coalition filed a lawsuit, saying the city had failed to conduct a study of the effect of the proposed ban on the environment, as required under the California Environmental Quality Act.
We conclude it can be fairly argued based on substantial evidence in light of the whole record that the plastic bag distribution ban may have a significant effect on the environment, the appeals court said. The four reports cited by the parties support the conclusions [that] a plastic bag ban is likely to lead to increased use of paper as well as reusable bags, [that] paper bags have greater negative environmental effects as compared to plastic bags, and that the negative environmental effects [from paper bags] include greater nonrenewable energy and water consumption, greenhouse gas emissions, solid waste production, and acid rain, it said.
Substantial evidence supports a fair argument the plastic bag distribution ban may have a significant environmental effect.
The court added there is no exemption from the CEQA requirement for a city based on its size, population or available resources.
It may be that the city's population and the number of its retail establishments using plastic bags is so small and public concern for the environment is so high that there will be little or no increased use of paper bags as a result of the ordinance and little or no impact on the environment affected by the ordinance, continued the court. But there is no statutory exemption from compliance with CEQA based on a city's geographical or population size. Nor have we found any decisional authority to the effect that a small city should not be required to expend its resources to comply with CEQA when it believes its actions will have a positive effect on the environment. Nor can CEQA's requirements be ignored when, as is often the case, the party seeking compliance has some personally beneficial motive in doing so.
The court further chastised the city for its failure to provide data on plastic bags and the city's experience in recycling them, and laid out criteria and data that the city should provide.
The court pointed out that the city did not provide any information on:
* The number of plastic and paper bags consumed.
* Recycling rates.
* The quantity of plastic bags disposed of in city trash.
* How the city disposes of trash.
* Whether plastic bags are a significant portion of litter.
* How, when and in what quantities paper and plastic bags are delivered into the city.
* Whether the city has a landfill that would be impacted by any increased paper bag use.
* Whether there are recycling facilities or programs in the city or the surrounding area.
* What the likely impact would be of a campaign urging recycling and reusable bag use.
Previous initiatives in California by the Save the Plastic Bag Coalition have forestalled plastic bag bans in Encinitas, Oakland, Los Angeles County, Santa Clara County, San Diego, Santa Monica, Morgan Hill, Mountain View and San Jose. It has also confined a ban in Palo Alto to four major grocers unless the city conducts an environmental impact report.
The Court of Appeal's decision is a victory for environmental truth, said Stephen Joseph, general counsel for the Save the Plastic Bag Coalition. Cities and counties must base their [environmental impact reviews] on substantial evidence instead of myths, misinformation, intentional ambiguities and exaggerations.
Paper bags are far worse for the environment than plastic bags, especially regarding greenhouse gases. If California bans plastic bags, it would be the annual CO2 equivalent of adding between 91,584 and 210,645 passenger vehicles to the highways.
Los Angeles County, San Jose and Palo Alto are currently conducting environmental impact reviews in order to draft plastic bag laws, and Green Cities California, a coalition of nine cities and Marin County, are collaborating to develop a master environmental assessment of the impact of plastic bag bans. The nine cities in the coalition are Berkeley, Los Angeles, Pasadena, Sacramento, San Diego, San Francisco, San Jose, Santa Barbara and Santa Monica.
Twelve U.S. cities, including San Francisco, Fairfax and Malibu in California, have plastic bag bans. The Save the Plastic Bag Coalition did not challenge the San Francisco and Malibu bans because it was not formed until after those bans were passed, said Joseph. Fairfax voters approved a plastic bag ban after a ban passed by the city was overturned in court after a Save the Plastic Bag Coalition lawsuit.
The court ruling came just six days after the early demise of two holdover bills in the California Legislature that would have placed a 25-cent tax on single-use plastic and paper carryout bags in California.
Environmental groups in California, including Heal the Bay and Californians Against Waste, still hope to persuade legislators to look at a smaller, 5- to 10-cent tax on plastic bags, now that the proposal for the 25-cent fee has been killed.
St. Helena, Berkeley and Marin County, California, also are considering plastic bag bans, and Encinitas is studying proposals to tax or ban the bags.
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