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Local plastic bag ordinances in California: Litigation Update

Local plastic bag ordinances in California: Litigation Update. Jennie R. Romer, Esq. Founder & Director www.plasticbaglaws.org. Disclaimer: This is not legal advice.

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Local plastic bag ordinances in California: Litigation Update

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  1. Local plastic bag ordinances in California:Litigation Update Jennie R. Romer, Esq. Founder & Director www.plasticbaglaws.org plasticbaglaws.org

  2. Disclaimer: This is not legal advice. • The information in this presentation is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your specific situation. plasticbaglaws.org

  3. Typical Claims in CA Plastic Bag Litigation • California Environmental Quality Act (CEQA) • Proposition 26 • California Retail Food Code • AB 2449 • Related lawsuit not involving a government agency: Hilex Poly v. ChicoBag plasticbaglaws.org

  4. California Environmental Quality Act • Under CEQA, if there is a “fair argument” that a project will have potentially significant impacts on the environment, the lead agency must prepare an Environmental Impact Report (EIR). • The arguments are primarily based on life-cycle assessments that suggest paper bags are worse for the environment than plastic. plasticbaglaws.org

  5. plasticbaglaws.org • A group of plastic bag manufacturers approached this man to help them defeat plastic bag ban initiatives. • In 2008, Stephen Joseph formed the Save the Plastic Bag Coalition (SPBC).

  6. plasticbaglaws.org SPBC sued or threatened to sue virtually every California municipality that subsequently considered adopting a plastic bag ordinance without completing an EIR.

  7. Types of CEQA Documents • Categorical Exemption • Negative Declaration • Mitigated Negative Declaration • Environmental Impact Report (EIR) plasticbaglaws.org

  8. Judicial Review of the Ordinances Under CEQA • Standard of Review • If an agency chooses not to prepare an EIR, a court will evaluate whether there is a “fair argument” that the project will have potentially significant impacts. • Save the Plastic Bag Coalition v. Manhattan Beach • The Supreme Court looked at whether an EIR was required under CEQA and determined that the City’s decision to use a NegDec was appropriate. plasticbaglaws.org

  9. Depending on the Situation, Use a Categorical Exemption orUse a NegDec and Preserve the CatEx* • In many instances a CatEx can be sufficient so long as a the ordinance and administrative record are strong. • Preserve the right to rely on CatEx (Class 7 & 8), language in Malibu’s ordinance: “Without waiving the right to rely on any applicable categorical or statutory exemption and in the interest of providing meaningful information to the City Council and to foster the most informed decision making process practicable, the Planning Division has nevertheless conducted an initial study of the proposed ordinance.” * The information in this presentation is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your specific situation. plasticbaglaws.org

  10. Adopt a Strong Ordinance • “Second Generation” plastic bag ban - include a charge on paper! (usually 10 cents) • Make the paper bag charge also apply to reusable bags • Make the bag charge a "minimum" charge • Make the charge apply to all retailers if possible • Include a strong reusable bag definition plasticbaglaws.org

  11. Adopt a Strong Ordinance - Reusable Bag Definition • Look at LA County & San Francisco definitions for durability standards. • Make the paper bag charge also apply to reusable bags so that no carryout bags can be given away for free (see San Francisco’s definition). single-use plastic bag Roplast “reusable bag” (image from Roplast website) From Roplast’s website: “At 2.25 mil, it is considered "reusable" by California law AB 2449. Give your customers a real treat. Give them a reusable bag!” plasticbaglaws.org

  12. Adopt a Strong Ordinance – Administrative Record • Develop a strong administrative record, meaning include everything a court should know about your city and your ordinance: • Local harms caused by plastic bags (water quality) • Number and type of businesses affected • What bags do the businesses use now? • Reusable bag outreach – education and giveaways • Local statistics including paper & plastic recycling rates • Local impacts to landfill capacity • Efficacy of similar ordinances plasticbaglaws.org

  13. Save the Plastic Bag Coalition’sPending CEQA Litigation • Save the Plastic Bag Coalition v. Marin County • categorical exemption • County won in superior court, appeal fully briefed & hearing TBA • Save the Plastic Bag Coalition v. San Francisco • categorical exemption (lawsuit also includes Retail Food Code claims) • Hearing scheduled for 8/27/12 • Save the Plastic Bag Coalition v. SLO • categorical exemption • Hearing TBA plasticbaglaws.org

  14. Proposition 26 • Use Santa Monica’s ordinance as a model should adequately address Prop 26 concerns regarding a 10-cent charge for paper and reusable bags, because: • retailers keep the entire charge • the charge reflects the reasonable price of the bags (as a precaution) • Do not direct the retailers regarding what to do with the money collected • Schmeer, et al. v. Los Angeles County, et al. • The County won at the superior court level and the case is on appeal. plasticbaglaws.org

  15. California Retail Food Code Preemption • Health & Safety Code Section 113705: • “ . . . intent of the Legislature to occupy the whole field of health and sanitation standards for retail food facilities . . .” • SPBC v. County Santa Cruz • settled – agreed to remove restaurants • SPBC v. Carpinteria • Carpinteria filed a Demurrer & lost • settled - agreed to remove restaurants, reduce scope of retailers, $11,500 to SPBC • SPBC v. San Francisco • SF filed a Demurrer – pending • CEQA hearing 8/17/12 & Retail Food Code decision should be issued at that time plasticbaglaws.org

  16. AB 2449 Preemption • Preempts local ordinances that include a charge for plastic bags • SPBC argues that AB 2449 preempts all local ordinances • losing argument in Marin County case • asserted inconsistently • Sunsets January 1, 2013 plasticbaglaws.org

  17. Hilex Poly v. ChicoBag • HilexPoly sued ChicoBag for false advertising based on ChicoBag’s statements regarding single-use plastic bags. • Under Settlement Agreement both parties agreed to carefully cite all claims relating to plastic and reusable bags and link to full reports cited. • Take away: Be very careful to cite to reliable sources! plasticbaglaws.org

  18. Contact Information • Visit www.plasticbaglaws.orgfor FREE information on local ordinances in California, including the text of ordinances and litigation documents. • Jennie is also available for consulting. • Questions? Please contact Jennie at jennie@plasticbaglaws.org. plasticbaglaws.org

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