The Save the Plastic Bag Coalition said it will file an appeal with California's First District 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.
Marin County Superior Judge Lynn Duryee's decision to uphold the ban “flies in the face of the California Supreme Court's recent decision” in the Manhattan Beach, Calif., plastic bag lawsuit. That decision said communities are not exempt from a state law that requires an environmental-impact report (EIR) before bans can be implemented, said Stephen Joseph, lawyer for the Save the Plastic Bag Coalition. The coalition comprises mostly plastics companies.
The July 14 Supreme Court ruling upheld the plastic bag ban in Manhattan Beach, which has a population of 35,000. However, it also said the court's requirement of 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 “cumulative impacts [of bans] should not be allowed to escape review when they arise from a series of small-scale projects.”
Nevertheless, the Superior Court turned down the bag coalition's request for a restraining order on the Marin County ban on single-use plastic checkout bags, 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” because it protects the environment, Duryee wrote in her Sept. 14 decision.
“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 [the] single-use paper bag. ... But it is an urgent and correct first step.”
“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 for 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.”
“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 [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.
The Marin County ban 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 in Maryland and Washington, D.C. — have a 5-cent tax on plastic and paper carryout bags.