Bag ban battles remain intense

Washington — The fights over plastic bag bans and fees are expected to continue full force in 2018 as the debates move to some new ground.

The shift will be partly geographic. After years of fights on the West Coast, the focus will move to the Northeast, industry lobbyists say, following Boston's adoption of a bag ban in late 2017.

"New England in general is really what we see in 2018 … [and] where we anticipate the most amount of effort to regulate our products," said Matt Seaholm, executive director of the Washington-based American Progressive Bag Alliance.

The battles also are shifting more into the legal system, with cases in Florida and Texas.

In a closely watched case, the Texas ​ Supreme Court heard oral arguments Jan. 11 in a lawsuit challenging the city of Laredo's 2014 bag ban.

The case has some unusual fault lines. Retailers, merchants and the Texas Attorney General are trying to stop Laredo, arguing the city went beyond what state law allows. But other business groups support Laredo. The state's cotton-growing industry and some ranchers, worried about wind-blown bags hurting the value of their crops and cattle harming themselves by eating bags, have filed court briefs joining with environmentalists and other cities to side with Laredo.

Ohio and South Carolina are also expected to be battlegrounds, with local governments there pushing bans and fees.

The plastics industry is responding by lobbying state legislators to pass laws limiting the power of cities and counties to restrict bags, in effect pursuing statewide "bans of bans" that would override local laws.

State legislatures in Arizona, Florida, Idaho, Indiana, Iowa, Michigan, Minnesota, Missouri and Wisconsin in recent years put such laws in place, according to the National Conference of State Legislatures.

In short, it promises to be an active year.

For their part, supporters of tougher laws against bags say they see growing interest, driven by public concern over litter, by a desire to protect the oceans and wildlife and by cities wanting to reduce cleanup and drainage costs associated with bags.

Seaholm sees the political battleground as more balanced, with the industry's successes in stopping bag laws not getting as much attention.

APBA argues that support for bag bans and fees is most active in states where the environmental group Surfrider Foundation has the strongest local chapters, including in New England.

"Really where that comes from is that's where the strongest organization of groups like the Surfrider Foundation are, in a place where they haven't already achieved some regulation, like California," Seaholm said.

Surfrider, which is based in San Clemente, Calif., has 80 chapters nationwide. It made plastics waste one of its four priorities this year and considers plastic pollution "one of the greatest threats to the health of our ocean ecosystems."

The group said on its website its focuses this year include banning plastic bags in Massachusetts and polystyrene foam in California and working with restaurants to reduce single-use plastics.

"Plastic pollution is a priority for the organization this year along with our water quality work," said Surfrider Legal Director Angela Howe in an email. "This is the first year that we are prioritizing in this manner."

Howe said there's a growing network of groups addressing plastics, including targeting single-use plastics, promoting zero-waste principles and opposing incineration of plastic trash.

"I think there is a trend toward bag bans activating in areas that have not already done so," Howe said. "The rest of the nation have noted places like Hawaii and California that have these policies in place and are enjoying a cleaner environment because of it."

Both APBA and Surfrider identify South Carolina as one such hot spot.

A few coastal communities in the state have passed plastic bag restrictions, and others, including several in Beaufort County, are moving to enact similar laws, said Emily Cedzo, the land, water and wildlife program director for the South Carolina Coastal Conservation League, in Charleston.

"There is an extremely significant amount of momentum locally to better protect resources and regulate plastics better," she said. The conservation league has made plastic pollution one of its priorities.

Even cities that do not restrict bags have concerns, she said, noting that the mayor of Charleston, the state's largest city, convened a task force in 2016 to study minimizing plastic bags.

Cedzo believes the industry's push for a state law overruling cities, also known as pre-emption, comes because industry sees bag bans and fees picking up support.

"As they are seeing local communities passing these ordinances, I think they feel the need to push even harder on the pre-emption bill," she said.

The pre-emption bill was narrowly stalled last year, in the South Carolina House, in a "tough fight," she said, and is expected to return for this year's legislative session.

Cedzo calls state pre-emption bad policy: "Local governments have the right to solve local problems with local solutions."

Seaholm, however, said APBA pushes for statewide laws because bags or packaging should be regulated at the state level. Otherwise, there will be a patchwork of differing local rules. APBA refers to such bills as uniformity legislation.

APBA argues bag bans and fees are misguided because bags are recyclable and can have a lower carbon footprint than many alternatives, including reusable bags.

Seaholm said the bag debate in South Carolina is driven by Surfrider and the conservation league.

"This is a great example of why is there an issue in South Carolina: It's because there's an organized effort to do something. It comes down to two groups," he said. "They've made this just part of their agenda to go out and promote bag bans of all sorts."

Even with the push in the South, it's New England where Seaholm expects the most activity this year, and not necessarily favorable to the bag industry.

"I would characterize New England as a little bit more us playing defense," he said.

More than 40 cities in Massachusetts now have plastic bag bans or restrictions, which could set up momentum for a statewide ban as retailers grow concerned about differing local laws.

The industry also is hinting at legal challenges: APBA said Boston's new bag ordinance violates the Massachusetts constitution because it requires stores to keep the fee charged on some bags and not give the money to the government.

Seaholm said the Massachusetts attorney general has previously challenged other bag ordinances on similar grounds.

He said New York, as well, is expected to take up bag fees again after Gov. Andrew Cuomo signed a bill last year to temporarily block a 5-cent bag fee adopted by the New York City Council.

While Cuomo supported the temporary block on New York City — it expired at the end of 2017, and the city is free to try again — the governor has also publicly said he favors a statewide solution to the "plastic bag problem."

As the debates heat up, Seaholm argues that environmental groups can bring more resources.

"Our members are very generous with their resources, but we are no match to what the environmental organizations have at their disposal," Seaholm said.

It's difficult to independently assess that claim.

Under tax returns required to be made public as part of their nonprofit status, Surfrider, for example, had an annual budget of $6.1 million in 2015, the last year figures are available. But that's spread over many campaigns, including water quality and offshore drilling.

The conservation league in South Carolina had a budget of $3.4 million in 2015. But that, too, is spread over many campaigns.

APBA, while a nonprofit, is not required to release a tax return because it operates as part of the Plastics Industry Association in Washington.

But the industry has shown it can muster resources when needed. Public records in California show the plastic bag industry spent at least $5.5 million urging voters to reject California's statewide bag ban in 2016.

Ultimately, though, that industry campaign failed, and California voters approved the ban by a 53 to 47 percent margin.

While new bag laws or defeats like California's attract a lot of attention, Seaholm argues that some of the industry's lobbying successes do not get as much attention.

"We're effective in a lot of places, and those are wins. But they're less publicized because what typically happens is the ordinance just kind of goes away," he said. "There isn't fanfare about an ordinance not being taken up."

Overall, he says the two sides are evenly matched: "I think the game is still being played, and I think we're probably pretty close to being tied right now."