A coalition of companies involved in making and distributing plastic bags challenged an ordinance that bans single-use plastic bags and imposes a fee. The coalition alleged that the county failed to comply with the California Environmental Quality Act (“CEQA”). A court of appeal held that the coalition failed to show that the county violated CEQA when it declared the ordinance was categorically exempt. (Save the Plastic Bag Coalition v. County of Marin (--- Cal.Rptr.3d ----, Cal.App. 1 Dist., June 25, 2013).
For a discussion of the referenced Manhattan Beach Supreme Court case, please see our Legal Alert entitled, "UPDATE: Supreme Court Relaxes Standing Requirement For Corporations In CEQA Cases But Finds No EIR Is Required For Ordinance That Bans Use Of Plastic Shopping Bags," July 21, 2011.
The County of Marin (the “County”) enacted an ordinance that prohibited certain retail establishments from distributing single-use plastic bags. The ordinance also required retailers to impose a reasonable charge of not less than five cents per bag for each single-use recycled content paper bag. The ordinance only applied to grocery stores, pharmacies, and other stores in unincorporated portions of the county that sell perishable items or food.
Prior to the County’s enactment of the ordinance, the Save the Plastic Bag Coalition (“Coalition”) claimed the adoption of the proposed ordinance required the preparation of an environmental impact report (“EIR”). The County determined that the ordinance was exempt from CEQA review based on categorical exemptions pursuant to CEQA Guidelines sections 15307 and 15308 and filed a notice of exemption.
Coalition filed a petition for writ of mandate in the Marin County Superior Court. The superior court denied the writ and entered judgment in favor of County.
The County determined that although the ordinance was a project under CEQA, it was categorically exempt. The court of appeal upheld the decision of the trial court that the County correctly determined the ordinance was exempt.
The court of appeal first rejected Coalition’s argument that the Supreme Court’s decision in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155 controlled the disposition of this case. In Manhattan Beach, Coalition challenged a city’s determination that an ordinance banning the use of plastic bags at the point of sale was exempt from CEQA under the “common-sense” exemption and as a regulatory program that was designed to protect the environment. The city had conducted an initial review and acknowledged that a switch from plastic bags to paper bags may have some environmental consequences, but concluded “the impacts would be less than significant.” The Coalition presented evidence that the global life cycle of a paper bag has greater environmental impacts than the life cycle of a plastic bag. The Supreme Court concluded the increased use of paper bags in a city the size of Manhattan Beach would not have a significant effect on the environment.
In Manhattan Beach, the Supreme Court stated its “analysis would be different for a ban on plastic bags by a larger governmental body, which might precipitate a significant increase in paper bag consumption.” The Supreme Court also stated “[w]hile cumulative impacts should not be allowed to escape review when they arise from a series of small-scale projects, that prospect does not appear in this case.” Based on these two statements, the Coalition asserted that Manhattan Beach stands for the propositions that an EIR is required where a plastic bag ban is instituted in a city or county larger than Manhattan Beach and for smaller cities and counties based on cumulative impacts. Coalition claims that Marin County’s population is over seven times larger than the population of Manhattan Beach and therefore an EIR was required.
The court of appeal rejected Coalition’s argument. Because the ordinance only applied in the County’s unincorporated areas, it only applied to 40 stores. In comparison, the Manhattan Beach ordinance applied to more than 200 stores. The court of appeal concluded that the Manhattan Beach decision “does not preclude a public agency from relying on a categorical exemption for a plastic bag ban.” The court noted that “[a] categorical exemption may apply to plastic bag bans depending upon the unique facts and circumstances presented.”
The County concluded the ordinance was categorically exempt based on sections 15307 and 15308 of the CEQA Guidelines applicable to “actions taken by regulatory agencies as authorized by state law or local ordinance” in order (1) “to assure the maintenance, restoration, or enhancement of a natural resource” (Class 7 exemption), or (2) “to assure the maintenance, restoration, enhancement, or protection of the environment” (Class 8 exemption). The court found that there was substantial evidence in the administrative record to support County’s “conclusion that the ordinance is an action that will maintain, enhance, and protect natural resources as well as the environment generally.”
Coalition asserted that the Class 7 and Class 8 exemptions are inapplicable because of the “unusual circumstances” in this case. Coalition claims it presented unusual circumstances in that “substantial evidence that paper and reusable bags may cause significant negative environmental impacts.” The court concluded that “any local effects from a possible increase in paper bag use at 40 retailers would be insignificant.” It further found that, even if it accepted the argument that a five-cent per bag fee is not sufficient to deter consumers from switching from plastic bags to paper bags, “the overall impact on local landfills and transportation networks would still be insubstantial.” The court further concluded that “[t]here is no reason to believe the cumulative impacts of the law, even if it were to be adopted by all cities and towns in the county, would be significant.”
The court further found County was “not required to make a written determination supporting the conclusion [the] project was categorically exempt.” Coalition alleged County did not follow its own guidelines in claiming a categorical exemption. The court concluded that even if Coalition showed that County “did not comply with certain aspects of its own guidelines for asserting a categorical exemption,” Coalition “has failed to explain how any such noncompliance with the county’s own guidelines constitutes a CEQA violation.” The court stated, “CEQA does not require public agencies to follow any specific procedure in approving activities that are exempt.”