The California Supreme Court has reversed two lower court rulings and upheld a ban on single-use plastic carryout bags in Manhattan Beach that has been on hold for three years because of a lawsuit filed by the Save the Plastic Bag Coalition.
“This is an important victory for the environment and common sense,” said Mark Murray, executive director of Californians Against Waste. “Several cities that have previously adopted ordinances can now begin enforcement, and dozens of other jurisdictions that have ordinances pending can move forward without having to incur the time and expense of a full-blown environmental impact report.”
But language in the court's decision makes it debatable whether the July 14 unanimous decision by the Supreme Court will open the floodgates for more plastic bag bans in the state.
First, even though the court said no environmental impact report (EIR) is needed in the Manhattan Beach case because “substantial evidence and common sense support the city's determination that its ordinance would have no significant environmental effect,” the court also said that its analysis 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,” said the court.
Manhattan Beach has an estimated population of 35,000 and roughly 200 retail stores.
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.”
Equally as critical, the court ruled that corporate entities such as the coalition can bring litigation under the California Environmental Quality Act — a right that had been challenged by both the city and environmental groups.
“Absent compelling policy reasons to the contrary, it would seem that corporate entities should be as free as natural persons to litigate in the public interest,” said Justice Carol Corrigan, who wrote the decision. “Corporate purposes are not necessarily antithetical to the public interest.”
“That is absolutely huge,” said Stephen Joseph, counsel for the Save the Plastic Bag Coalition. “That is the most important part of this decision for the plastic bag industry, and for the plastics industry in general. … This allows you to come in and challenge [an action] — provided you have evidence — if you think a ‘green' project is going to do more harm than good for the environment.”
While not successful in its attempt to prevent the Manhattan Beach ban from going into effect without an EIR, Joseph said the court decision “is specific to Manhattan Beach.”
The main reason: the court was restricted to making its decision based on the facts at that time — when only two other cities in the state, San Francisco and Malibu — had plastic bag bans.
“The premise for this decision is now gone, so I don't think any city other than Manhattan Beach benefits,” Joseph said. “The court cleared the path to require cities other than Manhattan Beach to do EIRs — under two circumstances. Certainly larger cities have to do EIRs, and even smaller cities may have to do EIRs because of the build-up of critical mass of smaller and larger cities with plastic bag bans since 2008.
“At this point in time, we are at the point where the cumulative impact” of plastic bag bans would need to be considered in determining whether an EIR is needed, said Joseph, “because the cumulative impacts of a shift to paper bags have reached critical cumulative mass.”
But Sarah Abramson Sikich, coastal resources director for Heal the Bay in Santa Monica, Calif., disagreed.
“I think the Supreme Court decision sets a very good precedent for local governments to go forward with plastic bag bans because it said that a ‘negative declaration' was sufficient for small cities to go ahead with plastic bag bans. I think the ruling will be very discouraging for future litigation by the plastic bag industry.”
Joseph sees it differently.
“Environmentalists are out there shouting and gloating and saying: ‘We won. We won.' But if this is their definition of victory, I'd like to see their definition of defeat,” Joseph said.
“They wanted to knock us out of the game by saying we didn't have legal standing to litigate, and they wanted the court to say that no EIRs should ever be required with regard to plastic bags,” Joseph said. “They failed on both counts.”
“This decision is good for the plastics industry and it's good for the environment. We are delighted and will continue to demand EIRs,” said Joseph, whose coalition currently has lawsuits pending against Marin County because it did not conduct an EIR, and against Long Beach, Calif., because, he claimed, Long Beach “tampered with the Los Angeles County EIR” when the city adopted it for its own use.
The two main plastics industry associations in the U.S. both had decidedly different reactions than Joseph to the decision.
The American Chemistry Council declined to comment other than to issue a statement that its business unit, Progressive Bag Affiliates, “is not a party to any litigation that the Save the Plastic Bag Coalition has filed.
“PBA works to encourage lawmakers and stakeholders to work together to find environmentally and economically beneficial public policy solutions, such as increasing awareness and opportunities for plastic bag recycling,” ACC said.
The Society of the Plastics Industry Inc. said it was dissatisfied for two reasons.
“I'm disappointed in this specific court ruling, but I'm also disappointed that it continues an alarming trend of decisions to ban plastic products that are not based on sound science,” said Bill Carteaux, president and CEO of Washington-based SPI.
“If a thorough lifecycle assessment is conducted,” it shows that “significantly less energy” is needed to make and transport plastic bags than paper bags, and “a lot less greenhouse gases” are generated, he said. “Reuse and recycle has always been the answer. There are currently more than 15,000 drop-off locations for recycling plastic bags. Our industry is working to expand that number.”
But Murray of CAW disagreed.
“The whole notion that the use of paper bags generates more [greenhouse gas] emissions than plastic bags is not supported by the facts,” Murray said. “Even the plastic industry-funded Bousted study showed that the production of plastic bags produces more emissions than the production of an equivalent ‘carrying capacity' of paper bags — about 2.5 plastic bags to one paper bag.”
While the court said the city “properly concluded” that its plastic bag ban would have “only a miniscule contributive effect” on the overall environment because any increase in paper bag production from its ban was likely to be “insubstantial,” it agreed that paper bags have more of a negative environmental impact.
“It is undisputed,” wrote the court, “that the manufacture, transportation, recycling and landfill disposal of paper bags entail more negative environmental consequences than the same aspects of the plastic bag ‘life cycle.' ‘‘
Manhattan Beach city officials said they plan to begin to enforce their ban Jan. 1.
That brings the number of communities with plastic bans in the U.S. to 24 — more than half of them in California. In addition, Washington, D.C., and Montgomery County, Maryland, have a 5-cent tax on carryout plastic and paper bags.
Murray said San Rafael, Novato, San Anselmo, Sausalito, Mill Valley, Tiburon and the counties of Alameda, Santa Cruz and San Luis Obispo are moving forward with plastic bag bans.
In addition, the West Contra Costa Integrated Waste Management Authority — which represents the cities of El Cerrito, Hercules, Pinole, Richmond and San Pablo — is also is discussing the adoption of a plastic bag ban.
“This precedent-setting victory means that local governments may no longer have to spend unnecessary time and money on EIRs to deal with plastic bag litter for fear of being sued on the grounds of inadequate environmental review,” Murray said.
“This is a great day for the Pacific Ocean,” added Dan Jacobson, legislative director for Environment California, an environmental advocacy group based in Los Angeles. “Cities and counties can now move forward with plans to protect our environment — and to safeguard the significant portion of our economy that depends on a healthy ocean and beaches.”