New York state has to pay some of the legal costs for bag maker Poly-Pak Industries Inc. and others who challenged the rollout of the state's plastic bag ban, saying regulators were wrong and confusing in how they communicated.
But on the broader challenges to the bag ban, a state court judge said the ban stands.
Acting Supreme Court Justice Gerald Connolly ruled Jan. 15, in response to a challenge brought by Poly-Pak and others, that they were entitled to have some of their legal costs paid by New York's Department of Environmental Conservation.
Connolly gave the parties 30 days to break out how much of their legal expenses came from challenging a portion of DEC regulations that contradicted an earlier decision the judge delivered Aug. 20 on the bag ban.
He said the DEC's posting on its website of some regulations for the bag ban after his August decision did not follow the law, calling the DEC actions in that specific area "incorrect" and "frivolous."
"The court finds that DEC's affirmative actions in promulgating guidance in direct contravention of the court's decision to be without basis in law and accordingly frivolous," Connolly wrote.
He wrote that the companies, including the Bodega and Small Business Association, had to go to court to get the DEC to change its interpretation. Connolly wrote that the "DEC's complete change in interpretation of the Court's decision was made almost immediately upon petitioners' filing."
At issue was how to consider reusable bags made at least partly from plastic under the ban.
The court had ruled in August that some of DEC's regulations implementing the ban conflicted with legislative language establishing the bag ban.
Specifically, DEC regulations allowed reusable bags made from plastics, provided they met performance requirements to be used at least 125 times, but Connolly wrote that the state Legislature's language was clear that such bags were not allowed.
"It remains, of course, within the province of the Legislature to enact legislation to the extent it seeks to expand the list of 'exempt bags,'" the judge wrote.
The companies also asked Connolly to prevent the state from enforcing the bag ban or the DEC regulations until June, but the judge refused to do so.
New York state's bag ban was originally supposed to begin March 1, 2020, but that was delayed because of the lawsuit filed by Poly-Pak and others.
The state Legislature first passed the plastic bag ban in April 2019. It allows paper bags but requires stores to charge 5 cents for each bag.