Plastic Bag Industry Uses Legal Harassment to Intimidate Against Plastic Bag Bans

 

Plastic bag companies from South Carolina and Texas are bullying California's local governments, and the latter too often lack the resources in these economic times to take on a lengthy and expensive lawsuit.  A coalition of plastic bag manufacturers has been threatening lawsuits and filing petitions to delay local ordinances from being implemented.

But in the last few years, cities and counties are prevailing in the courts.

Victory: On May 9, 2014, the Save the Plastic Bag formally dropped a pending lawsuit against the Santa Cruz County bag ordinance in restaurants.

Victory: On April 16, 2014, the California State Supreme Court denied a petition to review the Court of Appeals ruling in favor of San Francisco's bag ban.

Victory: On December 10, 2013, the First District Court of Appeal upheld San Francisco's plastic bag ban (including restaurants). 

Victory: On October 2, 2013, the California State Supreme Court denied a petition to review the Court of Appeals ruling in favor of Marin County's bag ban.

Victory: On June 25, 2013, the First District Court of Appeal upheld the lower court ruling in favor of Marin County's bag ban.

Victory: On May 15, 2013, the California State Supreme Court denied a petition to review the apellate ruling on the LA County bag ordinance.

Victory: On February 21, 2013, the LA County Appellate Court affirmed the lower court's ruling that the LA County paper bag charge was not a tax subject to Prop 26.

Victory: On October 1, 2012, the SLO Superior Court rejected STPBC's petition against the bag ordinance for lack of substantial evidence.

Victory: In September of 2012, the San Francisco Superior Court rejected the STPBC complaint and motion to stay on the SF bag ordinance.

Victory: On March 23, 2012, the Los Angeles Superior Court ruled that LA County's bag ordinance with a 10 cent charge on paper did not violate Prop 26 because the charge did not generate revenue for the County. 

Victory: On September 27, 2011, the Marin County Superior Court ruled that Marin County's was correct in determining that its bag ban was exempt from CEQA.

Victory: On July 14, 2011, the CA State Supreme Court ruled that the City of Manhattan Beach did not require an EIR for its plastic bag ban. 

 

How does a local government protect itself from litigation? Read more on this topic.  

 

Litigation Summaries and Documents

 

Carpinteria (Ban on plastic bags, ban on paper bags in large grocery stores - Categorical Exemption): Carpinteria passed the first double ban in California in March 2012. The complaint filed by the STPBC focuses on the inclusion of restaurants in the ban, and not on CEQA compliance. The City reached a settlement with STPBC in June 2012.

STPBC Complaint (filed March 20, 2012)

Carpinteria Demurrer to Complaint
Court Ruling on Demurrer (May 8, 2012)

 

Fairfax (Ban on plastic bags - Categorical Exemption): The Town of Fairfax adopted a plastic bag ban in August 2007. The town was sued by a group that called itself the North Bay Coalition to Support Plastic Bag Recycling (NBCSPR). Fairfax circumvented CEQA requirements by adopting a ban via voter initiative in November 2008. 

NBCSPR Petition for Writ of Mandate (filed August 24, 2007)

 

Los Angeles County (Ban on plastic bags, 10 cent price requirement on paper bags - EIR): In October 2011, Hilex and some individuals filed a petition to void the LA County ordinance. They alleged that the 10-cent charge on paper bags is really a local special tax that requires voter approval as amended by Prop 26. In March 2012, the Court denied the petition and ruled that a paper bag charge was not a tax under Prop 26. The Court of Appeal upheld the decision in early 2013, and a Supreme Court petition for review was denied.

 

Complaint for Writ of Mandate (filed October 3, 2011)

Petitioners’ Memorandum of Points and Authority

Petitioners’ Appendix
Petitioners’ Request for Judicial Notice
Petitioners’ Reply Brief
LA County’s Opposition Brief
Superior Court Ruling

Court of Appeal Ruling (filed February 21, 2013)

 

Long Beach (Ban on plastic bags, 10 cent price requirement on paper bags - Addendum to LA County EIR): Long Beach passed its bag ordinance in May 2011. But unlike LAC, Long Beach did not issue a statement of overriding consideration for the likelihood of passing the GHG emission threshold of significance. The suit was settled after Long Beach agreed to adopt the County’s Statement of Overriding Consideration in October 2011.

    STPBC Petition for Writ of Mandate (filed June 9, 2011)
    Long Beach City Council Resolution

    Manhattan Beach (Ban on plastic bags - Negative Declaration): The California Supreme Court ruled in favor of an appeal by the City of Manhattan Beach affirming the right of local governments to phase out plastic grocery bags without an EIR in July 2011.  

    CA Supreme Court Decision (filed July 14, 2011)

     

    Marin County(Ban on plastic bags, 5 cent price requirement on paper bags - Categorical Exemption): In September 2011, Marin County Superior Court found the ordinance “a reasonable legislative and regulatory choice” to protect the environment without causing a significant negative impact. The County had correctly determined the project to be exempt based on its actions to protect the environment and natural resources. STPBC filed an appeal of this decision on November 29, 2011. On June 25, 2013, in an unpublished decision from the First District Court of Appeal, the lower court ruling was upheld. STPBC filed a petition for review to the Supreme Court in August, which was denied on October 2, 2013.

      Marin County Superior Court Decision (filed September 14, 2011)
      STPBC Appellant's Opening Brief
      Marin County Respondent Brief
      STPBC Reply to County Brief
      CAW Amicus Brief
      STPBC Reply to CAW's Amicus
      Court of Appeal Published Opinion (July 25, 2013) 

      Oakland (Ban on plastic bags - Categorical Exemption): Oakland passed its plastic bag ban in 2007. It was challenged by the Coalition to Support Plastic Bag Recycling (CSPR) and the ordinance was rescinded by the Alameda County Superior Court one year later. However, in 2012, the Alameda County Waste Management Authority (StopWaste.org) passed a single-use bag ordinance that includes Oakland and other incorporated cities.

      CSPR Petition for Writ of Mandate (filed November 21, 2007)
      Alameda County Superior Court Judgement (filed May 16, 2008)

      Palo Alto (Ban on plastic bags - Mitigated Negative Declaration): Palo Alto's 2009 bag ban was challenged by the Save The Plastic Bag Coalition (STPBC). They settled out of court with the agreement that the City would not expand its ban to other stores without an EIR.

      STPBC Petition for Writ of Mandate (filed April 10, 2009)
      Settlement Agreement

       

      San Francisco (Ban on plastic bags, 10 cent price requirement on paper and reusable bags - Categorical Exemption): In February 2012 San Francisco expanded its bag ban and was sued by the STPBC. The two causes of action are related to CEQA compliance and the bag ban for restaurants. A preliminary injunction by STPBC was denied. A verbal ruling in September of 2012 rejected both arguments in the complaint. A later hearing rejected the motion to stay. The case was appealed and heard in the Court of Appeals on November 19, 2013. The Appeals Court unanimously upheld the ruling on December 10, 2013. A petition to review was denied by the California State Supreme Court on April 16, 2014.

      STPBC Petition for Writ of Mandate (filed February 29, 2012)

      STPBC Motion for Preliminary Injunction (filed May 8, 2012)
      San Francisco Demurrer to Complaint on Second Cause of Action (filed June 6, 2012)
      Court Order on STPBC Request for Preliminary Injunction (filed June 13, 2012)
      San Francisco Press Release on Verbal Ruling (dated September 12, 2012)
      STPBC Motion for Stay of Ordinance
      San Francisco Opposition to Request to Stay
      Trial Court Ruling (filed November 7, 2012)
      Court of Appeal Disposition (December 10, 2013)

       

      San Luis Obispo (Ban on plastic bags, 10 cent price requirement on paper bags - Categorical Exemption): A petition was filed January 30 2012. The SLO lawsuit had two causes of action, but the second cause was dropped in February. The first cause of action is CEQA compliance. The Superior Court rejected the petition on October 1, 2012 due to lack of substantial evidence to support a fair argument.

      STPBC Petition for Writ of Mandate (filed January 30, 2012)

      Superior Court Ruling (filed October 1, 2012)

       

      Santa Cruz City (Ban on plastic bags, 10 cent price requirement on paper bags - Negative Declaration): STPBC sued the City in August 2012 for the plastic bag ordinance it adopted in July. Argued that an EIR was necessary and that, although the ordinance excludes restaurants, it still violates Retail Food Code because of its definition for restaurants. The case was settled.

      STPBC Petition for Writ of Mandate (filed August 2, 2012)

      Answer to Civil Petition (filed October 15, 2012)

       

      Santa Cruz County (Ban on plastic bags, 10 cent price requirement on paper bags in year 1, 25 cents thereafter - Mitigated Negative Declaration): This lawsuit does not discuss CEQA requirements and pertains to the ordinance's banning of plastic bags provided by restaurants. In February 2012, the action was dismissed after the County exempted restaurants from the ordinance, while allowing for later reconsideration. In September of 2012 (after the ruling in the San Francisco case), the County approved an expansion of the ordinance to restaurants. The coalition filed a new complaint in October 2012. A request for dismissal was filed on May 9, 2014.

      STPBC Complaint (filed October 17, 2011)

      STPBC Complaint (filed October 29, 2012)
      County Answer to Complaint (filed November 19, 2012)

      STPBC Request for Dismissal (filed May 9, 2014)