The plastic bag had its day in court Jan. 11, with the Texas Supreme Court hearing a widely watched case challenging the city of Laredo's ban on thin shopping bags.
The justices and lawyers spent 45 minutes wrangling over the pros and cons of plastic bag bans and whether they're allowed under Texas law. The case has implications for at least 10 other Texas cities with their own bag ordinances.
A group of Laredo businesses and the Texas attorney general argued that Laredo's ban was illegal. They said a 1993 state law prohibits cities from restricting packages and containers as part of solid waste management.
Laredo, however, said its ban is needed because it suffers significant harm from plastic bags, or as one court petitioner called them, "urban tumbleweeds."
A lawyer for the city said it spends more than $340,000 a year cleaning up from the estimated 120 million plastic bags used annually by its residents.
"They end up in the sewer systems, stopping up the drainage system, and they end up exacerbating flooding and putting lives at risk because of that flooding," said Dale Wainwright, a lawyer with Greenberg Traurig LLP in Austin. "Not to mention the litter that it causes."
He said the city, which has about 250,000 people, spends tax funds "taking the bags away from the rivers and streams that the bags were poisoning and taking the bags off of trees and fences throughout the city."
"The ordinance is a reasonable response to a huge problem in the city," said Wainwright, who is also a former justice of the Texas Supreme Court.
Strictly speaking, the case is not directly about the pros and cons of plastic bags. It turns on legal arguments about the authority of cities.
The Laredo Merchants Association, which filed the original case, contends Texas's 1993 Solid Waste Disposal Act prevents cities from banning containers or packages.
"With unmistakable clarity, the state legislature has declared that cities cannot pass an ordinance to ban the sale or use of a container or package for solid waste management purposes," said Richard Phillips, a lawyer with Thompson & Knight LLP. "That's exactly what they've done here."
The office of Texas Attorney General Ken Paxton agreed, with a lawyer telling the justices that Laredo was engaging in sophistry and "magic words" to avoid the plain meaning of the 1993 law.
Adopting Laredo's position would lead to a "slippery slope" toward more packaging bans and "obvious harms to consumer convenience and freedom," Paxton's office wrote.
But Laredo argued it's not at all clear that lawmakers 25 years ago meant to include plastic bags.
Wainwright said the 1993 state law does not specify plastic bags, and he said Texas legislators have in the past several years taken up but not passed bills that would have specifically overruled local plastic bag bans.
The two sides split in lower courts, with the city winning at the district court and the merchants prevailing in the appeals court.
The case has attracted major interest, with more than 15 environmental groups, businesses and other cities submitting friend of the court comments on both sides.
The arguments in Texas mirror a nationwide debate. The plastics bag industry did not file its own court brief, but one of its main political strategies has been to lobby other state legislatures to pass laws like the one on trial in Texas, preventing cities from banning bags.
Allies of the plastics industry, like retailers and the Texas Public Policy Foundation, said they oppose a patchwork of local bag laws.
"Inconsistent local ordinances harm the sales of affected retailers, force the layoff of employees, deprive retailers of their existing inventory of bags and impose an expensive and complex requirement on multisite retailers," the Texas Retail Federation said.
But other businesses, like the state's cotton growers and some ranchers, favor Laredo's ban.
"Cotton harvests are increasingly contaminated by plastic carryout bag litter, and TCGA's membership would suffer financially from lower cotton prices due to increasingly contaminated bales if municipalities are not able to regulate plastic bags locally," the Texas Cotton Ginners' Association said.
As well, a rancher and district attorney in three rural counties filed a brief supporting Laredo.
Jose Aliseda, district attorney for Bee, Live Oak and McMullen counties and a former Republican member of the Texas House, argued Texas law does give cities the power to regulate bags. He called them a "significant problem for many Texas cities."
"As a cattle rancher, he is also concerned with the negative impact plastic bag litter has on his livestock and livestock of other Texans," Aliseda's filing said.
The Texas Municipal League said it saw the merchants' arguments as giving businesses unfettered power.
"The truth behind [the merchants association] arguments is that state and national business lobby groups simply want to cut out all sound and reasonable city regulations and operate however they wish," the league said.
