California Voters Left Holding the Bag in the Plastic Bag Ban Battle

by Best Best & Krieger LLP

plastic grocery bag_72 resThe crown for the first state in the nation to ban plastic bags is up for grabs again. Late last year, the California legislature passed, and Gov. Jerry Brown signed into law, SB 270 — making California the first state to ban plastic bags. California’s title was short-lived, however, as the plastic bag industry mobilized a referendum petition to subject SB 270 to voter approval. On Feb. 27, the California Secretary of State indicated the plastic bag industry had gathered enough signatures to put the law on hold and subject it to a vote. The voters of California will have the final say in November 2016.

This is not the first battle for the plastic bag industry in California. In fact, municipalities have battled the plastic bag industry for years to enforce local ordinances prohibiting the retail distribution of plastic bags. Many cities in California initially adopted these ordinances in an effort to address environmental concerns with the ever expanding Great Pacific Garbage Patch impacting wildlife in and along the Pacific Ocean. However, the plastic bag industry challenged the adoption of these ordinances based on a city or county’s alleged failure to undertake proper environmental review.

Many cities adopted these ordinances relying on exemptions under California’s environmental statute, the California Environmental Quality Act. One such exemption allows cities to adopt new laws aimed at protecting the environment without having to undertake lengthy environmental review. With millions of dollars in ammunition, the plastic bag industry brought lawsuits against these cities. The suits claimed the ban would cause increased environmental impacts in the form of deforestation caused by the reliance on paper bags in lieu of plastic bags. After losing some of these battles in court, the plastic bag industry prevailed against the City of Manhattan Beach in both the trial and appellate courts. In response, many cities stopped pursuing such ordinances or, instead, spent large sums of money to hire consultants to prepare lengthy environmental impact reports. Ultimately, the California Supreme Court sided with municipalities and the plastic bag industry retreated.

Many retail stores throughout the State were forced to deal with a patchwork of regulations, with some cities adopting ordinances and others not. SB 270 was set to eliminate that confusion by banning the retail distribution of plastic bags state-wide and preempting local agencies from adopting ordinances inconsistent with the terms of the new law. Under SB 270, larger chain grocery stores, drug stores and smaller convenience and liquor stores would be prohibited from distributing single-use plastic bags. Cities and counties have additional time to explore and impose alternative requirements now that the SB 270 and its preemption provision are on hold pending voter approval.

SB 270 also gave direct authority to cities and counties to impose civil penalties for violations of the law. For a first time violation, a city or county could impose a $1,000 per day penalty. For a second violation, SB 270 authorized a $2,000 per day penalty. Any subsequent violation would cause a retailer to incur a $5,000 per day penalty. Penalties collected could have gone to the city or county, creating a potential incentive for enforcement.

Now that SB 270 is on hold and subject to voter approval, expect an all-out war come November 2016. The plastic bag industry has, and will, continue to spend enormous amounts of money in an effort to stop the ban on plastic bags. By some media estimates, the plastic bag industry sells $100 to $150 million in plastic bags in California alone, and will continue to profit now that the law is on hold. Like most cutting edge issues, California is now ground zero over the retail ban of plastic bags.

This article first appeared on on March 9, 2015. Republished with permission.

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