The extension of San Francisco's 5-year-old plastic bag ban to include all retail establishments has gotten a court's OK to go into effect next month as scheduled.
But Stephen Joseph, lawyer for the Save the Plastic Bag Coalition, said Sept. 19 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,” Joseph said after the Superior Court of California for the County of San Francisco denied the coalition's request to stay the ordinance at a hearing Sept. 18. “The judge failed to apply the law,” he charged.
Just the week before, the same court had denied the coalition's petition to overturn the ordinance. Members of the San Francisco-based coalition include bag makers Command Packaging in Vernon, Calif., and Crown Poly Inc. in Huntington Beach, Calif.
The group 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 what materials can be used to make carryout bags provided by restaurants and other food facilities.
“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 comprehensive EIRs will be required in cities and counties with populations larger than Manhattan Beach (33,000) before plastic bag bans can be enacted.
Specifically, the Supreme Court said its analysis in the Manhattan Beach would vary under different circumstances.
“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 do so.
San Francisco has argued that an EIR was not needed before it passed its new bag law in 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 Superior Court ruling, Joseph said environmentalists would have no recourse in such a situation: “As long as the city claims that the ordinance is for the protection of the environment, it can exempt itself” from the California Environmental Quality Act, 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 in July. In addition, businesses will be required to charge 10 cents for each paper or compostable plastic bag given out at checkout.
Nationwide, the number of communities in the U.S. with plastic bag bans totals 81, with 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, Calif.; Austin, Texas; Portland, Ore.; and Seattle.
In addition, the nation's fourth-largest city, Houston, is 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 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 citywide Santa Cruz ban, the coalition said the city did not conduct an EIR as required under CEQA and 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 case, he said, “is the polar opposite.”
The Santa Barbara court said 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.”
The court, which said the Retail Food Code and the ordinance “contain overlapping standards,” overruled the city's objection.
However, the Santa Barbara Court did not rule on the actual merits of the case. It emphasized that the city's objection raised only the issue of whether the plaintiff had a recognizable cause of action and did not determine whether the plaintiff ultimately was entitled to a favorable ruling.