In Save the Plastic Bag Coalition v. County of Marin, et al. (published in part by the First Appellate District on July 25, 2013) (“Marin”), the court upheld the County of Marin’s (“County”) ordinance prohibiting certain retail establishments from dispensing plastic bags and imposing a charge of at least five cents for paper bags. The court determined that the ordinance did not require review under the California Environmental Quality Act (“CEQA”) because it was categorically exempt under CEQA Guidelines §§ 15307 and 15308 (also known as Class 7 and 8 exemptions, which are actions taken to assure the maintenance, restoration, or enhancement of a natural resource, or protection of the environment from environmental review).
This decision follows a previous challenge by the Save the Plastic Bag Coalition (“Coalition”) appealing a plastic bag ban ordinance in the City of Manhattan Beach, which proceeded all the way to the California Supreme Court. See Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal. 4th 155 (“Manhattan Beach”).
In Manhattan Beach, the Coalition argued that the City was required to prepare an Environmental Impact Report (“EIR”), not a Negative Declaration (“ND”), to study the plastic bag ban in question. The Coalition contended that the ban would encourage consumers to use more paper bags, and cited “life cycle studies” that concluded that paper bags would have a greater global environmental impact than plastic bags. Rejecting the Coalition’s appeal, the court held that the City’s ban would only have a “minuscule contributive effect” on the broader environment, particularly because of the City’s population size (under 40,000) and number of retail establishments (under 220), and would lead to an insubstantial increase in paper bag production. The court noted, however, that an EIR might be required for a city with a larger population or if cumulative impacts would result.
In Marin, the Coalition relied on the court’s statement in Manhattan Beach to argue that the County was obligated to prepare an EIR because the population in Marin County is over seven times larger than Manhattan Beach. However, the Marin court pointed out that the ordinance in the County would be limited to 40 retail stores located in unincorporated sections of the County, as opposed to the 217 retail stores in Manhattan Beach, and that the County was not required to prepare an EIR under the analysis in Manhattan Beach.
The Coalition also contended that regulatory agencies are the only agencies that can rely on categorical exemptions when implementing a regulation authorized by a preexisting law or ordinance and accused the County of misapplying the categorical exemptions to create a loophole in CEQA for ordinances that are “environmentally friendly.” The court struck down the Coalition’s argument and upheld the County’s action as a regulatory action for purposes of protecting natural resources and the environment, a power granted under the California Constitution. In addition, the court noted that an attack on categorical exemptions requires the agency to present substantial evidence to support the exemption and then places the onus on the petitioner to present evidence that the exemption is subject to an exception. Here, because the Coalition did not raise the issue of whether the County met its initial burden, the court determined the argument to be forfeited. Nevertheless, the court went on to conclude that the administrative record contained substantial evidence that the ban qualified for treatment under the Class 7 and 8 categorical exemptions.
While the court did not rule on what level of environmental review an ordinance banning plastic bags generally requires, this decision provides additional guidance for public agencies regarding the application of categorical exemptions.