Thursday, July 14, 2011

California Supreme Court Rules for Bag Bans!

Today, the California Supreme Court ruled in favor of the City of Manhattan Beach’s single-use plastic bag ban, holding that state law does not require the City to complete a full Environmental Impact Report (“EIR”) in order to impose the ban. This decision undoubtedly will make it easier for cities to prohibit stores from distributing plastic grocery bags, ruling that state law didn't require Manhattan Beach to do an environmental impact report before imposing a plastic-bag ban in 2008. In the past, California cities have been especially deterred from acting to pass these local ordinances because there was the potential to be sued by the "Save Our Plastic Bag Coalition," a group comprised of plastic bag manufacturers and distributors.

The Plaintiff industry group claims the movement to ban plastic bags was based on misinformation and would increase the use of paper bags, with overall negative environmental consequences. However, the Supreme Court seemed to understand that the motive behind the ordinance was to replace single-use plastic bags with reusable ones, thereby making for a better coastal environment. Surely, the ordinance would have no significant negative effect on the environment. Justice Carol A. Corrigan, writing for a unanimous court and reversing the lower court opinion, said that “[s]ubstantial evidence and common sense support the city’s determination that its ordinance would have no significant effect. Therefore, a negative declaration was sufficient to comply with the requirements of the California Environmental Quality Act.”

Half of the opinion is spent discussing the standard for standing (or ability to sue). The Save the Plastic Bag Coalition, even though representing industry corporations, was allowed to bring this citizen suit because there was an actual controversy between parties with sufficient interests in the subject matter. The court also noted that under CEQA, strict rules of standing do not apply when there are broad environmental concerns involved in the case.

This is a win for Manhattan Beach who has spent the past three years wrapped up in this litigation at the Superior Court, Appeals Court and finally the California Supreme Court level. It started in July of 2008, when Surfrider Foundation South Bay Chapter activists worked with many other environmental organizations to spark Manhattan Beach City Council to prohibit carry-out plastic bags.

Importantly, this decision means that it is safe for cities (especially smaller cities) to proceed in enacting a local bag ban ordinance with merely an accompanying Negative Declaration rather than a full (and more expensive) Environmental Impact Report to fulfill their California Environmental Quality Act (“CEQA”) requirement. The decision does focus on Manhattan Beach being a smaller city, with the population of 35,852 in the 2010 census, as one of the justifications for environmental impact being low.

One significant distinguishing factor between the Manhattan Beach case and the more recent bag bans that have been passed in California is the inclusion of a 5-cent fee on single-use paper bags. Because the popular approach to this issue is now deterring all single-use bags, there is even less of an argument that a restriction on plastic bags will increase the use of paper bags. The object of all cities that are trying to regulate bags in California is to encourage consumers to shop with reusable bags and to encourage the habit of bringing your own bag to the store. This type of ordinance regulating both paper and plastic, in turn, alleviates the impact on the environment, especially the marine environment, and stops a waste of natural resources used to make the single-use bags.

San Francisco, Malibu, Santa Monica, Long Beach, Calabasas, Marin County and unincorporated Los Angeles County have also enacted bans. Many other cities are chomping at the bit to do the same, but were waiting on the opinion of the Supreme Court in this case. This opinion will usher in a new round of local action on single-use plastic bag pollution.

Applause to the California Supreme Court for allowing Manhattan Beach to Rise Above Plastics!