The Texas Supreme Court has given the plastics bag industry a win and handed local governments and environmentalists a loss, striking down a controversial ban on single-use plastic and paper bags in Laredo.
The court's unanimous June 22 decision also may put in jeopardy plastic bag ordinances enacted by other Texas cities. State Attorney General Ken Paxton issuing a strongly worded statement urging cities rescind "illegal bag bans."
"Municipalities violate the law when they unlawfully pass the burden of solid waste management to citizens and retailers through illegal bag bans," Paxton said. "I hope that Laredo, Austin, and any other jurisdictions that have enacted illegal bag bans will take note and voluntarily bring their ordinances into compliance with state law."
"Should they decline to do so, I expect the ruling will be used to invalidate any other illegal bag bans statewide," he said, noting in a statement that the cities of Brownsville and Kermit had repealed their bans after Paxton's office sued or threatened to sue them.
But environmental groups criticized the ruling, saying it ignored the damage from plastics waste. And two of the court justices issued a very pointed opinion warning of "grave consequences" of not addressing those worries.
"We are very disappointed in today's ruling," said Luke Metzger, executive director of Austin-based Environment Texas. "Plastic pollution is harming wildlife, marring the beauty of our cities, and threatening our health, safety and economy. Nothing we use for five minutes should pollute our environment for hundreds of years."
He urged major retailers such as Walmart Inc. and Texas-based grocery chain HEB "to continue observing the ban in these cities" and said the group wants to Texas Legislature to remove the state law used to invalidate the city of Laredo's ban.
In a statement to the Texas Tribune media outlet, the head of the Texas Municipal League called it a loss for local governments.
"Plastic bags are the perfect case for why different geographies need different sets of rules," said Bennett Sandlin, executive director of the league. "This is a sad day."
In its unanimous decision, the Supreme Court justices said they were not ruling on the merits of bag bans or restrictions but rather addressing whether Laredo had the power under state law to regulate them.
Lower courts had split, with the trial court ruling in favor of Laredo but a divided appeals court deciding that Laredo's ordinance violated the Texas Solid Waste Disposal Act.
That act prevents cities from regulating containers or packaging unless expressly authorized by state laws. In bringing the original lawsuit, that was the point that the plaintiffs, the Laredo Merchants Association, had focused on.
"Both sides of the debate and the many [friends of the court] who have weighed in assert public-policy arguments raising economic, environmental, and uniformity concerns," the court wrote, in an opinion from Chief Justice Nathan Hecht. "But those arguments are not ours to resolve. The wisdom or expediency of the law is the Legislature's prerogative, not ours."
"In this case, legislative intent in the act to preempt local law is clear," the court said.
A concurring opinion from two of the justices, Eva Guzman and Debra Lehrmann, did, however, weigh in on worries of plastic pollution and whether the law imposed undue burdens on businesses.
Guzman wrote in a detailed 10-page opinion that she agreed that the court could only decide the narrow legal issue. But she expressed concern over plastic waste.
"Allowing plastic debris — bags, Styrofoam cups, water bottles, and similar pollutants — to migrate unchecked into the environment carries grave consequences that must not be ignored," she wrote. "Though I join the court's opinion, I write separately to highlight the urgency of the matter. As a society, we are at the point where complacency has become complicity."
While Guzman called plastics a "miracle material with many beneficial purposes" she noted that other industries in the state — cattle ranching, cotton and fishing — filed court briefs detailing significant economic harm they suffered from windblown plastic bag waste.
"As the amicus briefs vividly relate, these so-called urban tumbleweeds are a blight and a nuisance, creating public eyesores, harming the ecology and our economic industries, and imposing significant costs on taxpayers and municipalities for litter abatement," Guzman wrote.
But she also questioned Laredo's ban, saying that a local merchant testified that the city ordinance is "economically infeasible and [makes it] practically impossible for small businesses to acquire bags that satisfy the ordinance's criteria."
And she said it "remains debatable" whether the litter abatement benefits outweigh potential risks of food borne illness from reusable bags or environmental consequences from plastic bag substitutes.
Guzman suggested the debate will continue. She closed her opinion by urging the Texas Legislature to take action, including possibly giving cities like Laredo more authority to regulate.
"Standing idle in the face of an ongoing assault on our delicate ecosystem will not forestall a day of environmental reckoning — it will invite one," she wrote.
