“Bag It!” – Third Published CEQA “Bag Ban” Decision Upholds San Francisco’s Ordinance as Categorically Exempt While Slamming Plaintiff’s Arguments

by Miller Starr Regalia
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Plaintiff Save the Plastic Bag Coalition (Coalition) lost a third consecutive published appellate decision in its litigation campaign to require EIRs for virtually all local ordinances that ban or restrict the use of single-use plastic bags in favor of alternatives deemed environmentally superior. The First District Court of Appeal’s opinion in Save the Plastic Bag Coalition v. City and County of San Francisco (1st Dist., Div. 2, 2014) ____ Cal.App.4th ____, Case No. A137056, which was filed December 10, 2013, and later ordered published on January 3, 2014, extended the existing CEQA precedents to a local ordinance covering a significantly larger urban area – San Francisco – while showing little tolerance for the Coalition’s contrary arguments.

San Francisco’s challenged ordinance was a 2012 enactment expanding its then-existing restrictions on the use of “checkout bags” by retail establishments in the City. Whereas the City’s prior Ordinance required large supermarkets and retail pharmacies in the City to use compostable plastic, recyclable paper and/or reusable checkout bags, and prohibited use of single-use plastic bags, the 2012 Ordinance extended these restrictions to all retailers and (by July 2013) all retail food establishments in the City, required stores to charge customers a 10¢ fee for checkout bags, and instituted a community outreach program to encourage reusable bag use.

The City issued a 12-page report, entitled “Certificate of Determination of Exemption,” for the project, which set forth its determination that the new Ordinance was categorically exempt from CEQA as a regulatory action that would protect natural resources and the environment (14 Cal. Code Regs., §§ 15307, 15308) and its conclusions regarding the Ordinance’s “environmental impacts” along with a summary of the relevant facts and evidence. The crux of the City’s reasoning was set forth in the certificate’s following syllogism: “By eliminating single-use plastic bag use at more ‘stores’ covered by the ordinance, the proposed project would result in greater use of single-use paper bags, single-use compostable bags and reusable bags. Single-use paper bags and compostable bags have greater environmental impacts on air quality and GHG emissions and water usage than single-use plastic bags[,] and reusable bags (or no bag at all) have lesser environmental impacts in all categories than single-use plastic bags. Studies have shown that banning single-use bags and imposing a mandatory charge on single-use bag uses of paper and [compostable] bags results in an increase in reusable bag and no bag use and a decrease in single-use bag use. Because the proposed project would ban single-use plastic bags and impose a mandatory charge on single-use paper and compostable bags at all ‘stores’ in San Francisco and the proposed project would include a public education campaign aimed at promoting reusable bags, the proposed project would protect the environment and not have a significant impact on the environment.”

In enacting the Ordinance, the City also made numerous other findings, including that broad use of single-use checkout bags and their typical disposal impedes the City’s landfill diversion goals; that plastic bags are difficult to recycle and contaminate other materials that are recycled and composted; that single-use bags create significant litter problems throughout the City and Bay; that production and disposal of single-use checkout bags has significant environmental impacts in a number of areas; and that plastic checkout bags have the greatest impact of all single-use checkout bags on litter and marine life, inter alia.

The trial court denied the Coalition’s petition for a writ of mandate under CEQA (as well as its complaint to invalidate the 2012 Ordinance as preempted by the Retail Food Code, an aspect of the case not discussed herein), and the Court of Appeal affirmed. In rejecting the Coalition’s CEQA arguments – that the City’s reliance on categorical exemptions for the project was improper, or that alternatively the “unusual circumstances” exception to the exemptions applied – the Court of Appeal noted that the Coalition did not actually dispute that the record contained substantial evidence supporting the City’s determination that the 2012 Ordinance fell within the two exemptions at issue.  Rather, it raised the following two arguments that the exemptions were improper and that an EIR was required as a matter of law: (1) the Supreme Court’s decision in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155 requires an EIR when any jurisdiction larger than Manhattan Beach enacts an ordinance restricting plastic bag use; and (2) the categorical exemptions under CEQA Guidelines sections 15307 and 15308 cannot apply because they apply only to “regulatory action” whereas the 2012 Ordinance was a “legislative action.”

To put it mildly, the Court was singularly unimpressed with both of these legal arguments. With regard to the first, the Court stated “we find nothing in [Manhattan Beach] which supports the Coalition’s specific contention that the City cannot rely on a categorical exemption in this case because it is larger than the City of Manhattan Beach.” It pointed out that while Manhattan Beach upheld a negative declaration as sufficient CEQA compliance, the Supreme Court nevertheless observed that reliance on a categorical exemption would also be an available alternative. Further, the Coalition completely misread Manhattan Beach’s footnoted reference to plaintiff Coalition’s own contentions in that case regarding “comprehensive environmental review” as part of the Supreme Court’s holding; according to the Court of Appeal, “the Coalition’s strained interpretation… stretches the bounds of reasonable advocacy.”

In moving on to rip apart the Coalition’s second legal argument regarding the initial applicability of the exemptions – i.e., that they do not apply to “legislative” but only “regulatory” actions – the Court pointed out that “the precise argument” was made and rejected in the recently-decided case of Save the Plastic Bag Coalition v. County of Marin (2013) 218 Cal.App.4th 209, which upheld Marin County’s similar ordinance finding, inter alia, that “[a]lthough ordinances are always ‘legislative’ in character, they may also constitute ‘regulations’.” (Citing id. at 227.)

In rejecting the Coalition’s argument that the “unusual circumstances” exception to a categorical exemption applied, the Court noted the City determined that the comments and materials submitted by the Coalition did not constitute substantial evidence that any unusual circumstances were associated with the 2012 Ordinance and therefore did not alter its conclusion that the categorical exemptions applied. While the Coalition argued the City forfeited this argument by failing to make specific findings responsive to its objections, the Court noted that “[i]ronically, the Coalition waived this forfeiture claim by asserting it for the first time in its reply brief” and that, in any event, it was unsupported by the case the Coalition relied on. While Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106 did state that “if a reasonable argument is made to suggest a possibility that a project will cause a significant environmental impact, the agency must refute that claim to a certainty before finding that the exemption applies[,]” Davidon Homes dealt with the so-called “common sense” exemption, which is not a categorical exemption under the CEQA Guidelines. Rather, the “common sense” exemption is an application of “the general rule that CEQA applies only to projects, which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.” (14 Cal. Code Regs., § 15061(b)(3).)

The language in Davidon Homes relied on by the Coalition was “obviously tied to the unique language of the common sense exemption” and, indeed, the Davidon Homes Court “expressly focused on the substantive distinctions between the common sense exemption and other categorical exemptions… when it resolved the very different issues presented by that appeal.” The Court of Appeal thus expressed its “concern[] [with] the Coalition’s serious mischaracterization of Davidon Homes[,]” stating “[t]hat case does not lend any support to the Coalition’s forfeiture theory.”

The Court of Appeal next acknowledged – while noting the Coalition did not – the existing “split in authority” over “the proper standard of judicial review regarding factual determinations as to whether an otherwise exempt project falls within the unusual circumstances exception to a categorical exemption” – i.e., with some courts applying the same “fair argument” test applied to review of a negative declaration, and others applying an ordinary substantial evidence test deferential to the agency’s express or implied findings in support of the applicability of the categorical exemption. The Court noted the Coalition did not dispute that substantial evidence supported the City’s findings, but contended it had produced other substantial evidence to support a fair argument the 2012 Ordinance would have a significant adverse environmental effect due to unusual circumstances; the Court assumed without deciding that the fair argument standard applied and nonetheless rejected the Coalition’s “extremely convoluted” attempt to establish a “fair argument.”

First, the Coalition “failed to cite any evidence in this record to support their factual claim that [large numbers of] tourists and commuters who visit San Francisco will undermine the positive environmental impact goals of the 2012 Ordinance.” The Coalition’s invocation of “common sense” and reliance on its own attorneys’ arguments during the administrative proceedings was insufficient to carry its burden of producing substantial evidence. Second, the Coalition’s exclusive reliance “on global impact studies regarding the life cycle of the various types of bags that exist in this world” was also insufficient as the Court was “not convinced” that global impact studies are a fair or accurate mechanism for measuring the impacts of a local ordinance which is clearly tailored to address the specific environmental goals of that specific locality.” Even if they had some arguable relevance, the Court held these studies did not constitute substantial evidence supporting a “fair argument” of significant impact because of the significant differences between a mere “plastic bag ban” and the key features of the “Checkout Bag Ordinance” at issue, which included a ban on all single-use, non-compostable plastic checkout bags, a 10¢ bag charge on single-use paper or compostable plastic bags, and a community outreach program encouraging reusable bag use – all of which components were geared to reduce all single bag use in the City.

The Court also rejected the Coalition’s argument that the 10¢ bag charge was a mitigation measure, the effectiveness of which required evaluation in an EIR; instead, it recognized the 10¢ charge was an integral part of the overall project (i.e., the 2012 Ordinance) from its inception, rather than a mitigation measure later imposed to alleviate perceived difficulties in the original plan.

In sum, the Court of Appeal’s most recent plastic bag ordinance decision provides a clearer “road map” for cities and counties, pointing out the key elements of such an ordinance which are likely to support a categorical exemption, while also highlighting the burden of a party challenging such an exemption to produce actual substantial evidence supporting a fair argument that is tailored to specific local conditions, rather than generic worldwide “life cycle” studies coupled with speculative arguments. The tenor and tone of the decision also appear to express a distinct judicial attitude toward the Coalition’s litigation crusade under CEQA (and otherwise): “Bag it!”

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Miller Starr Regalia
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