Tuesday, January 7, 2014
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C.A. Upholds San Francisco Ban on Plastic Checkout Bags
By a MetNews Staff Writer
The First District Court of Appeal has upheld San Francisco’s 2012 ordinance banning retailers from dispensing single-use plastic bags.
Div. Two, in an opinion by Justice Paul R. Haerle, Friday rejected claims by Save the Plastic Bag Coalition, a group of plastic bag manufacturers and distributors, that the ordinance was required to comply with the guidelines of the California Environmental Quality Act.
In 2011 the city’s Planning Department issued a certification of exemption for the ordinance from CEQA review, which would have required the city to determine whether the bag restriction would have a significant effect on the environment and issue an environmental impact report.
By the city’s estimation, the ordinance was categorically exempt, under CEQA §15307 and 15308, because the bag restriction fits the exemption criteria by seeking to protect natural resources and the environment by reducing the use of plastic bags which have impact aesthetics, and air and water quality.
Code Amendment
The ordinance amended the San Francisco Environmental Code by extending restrictions on checkout bags to all retail stores, except food establishments, in October 2012, and to food establishments in July 2013. The ordinance also imposed a new 10-cent charge for the use of bags made of compostable plastic or paper with 40 percent recycled content.
The Save the Plastic Bag Coalition sought to invalidate the regulation because, it argued, the city violated CEQA when it avoided CEQA requirements by declaring the ordinance exempt. In support of their argument the group relied on another case in which it was involved, Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal. 4th 155,170.
The Manhattan Beach case also addressed an ordinance banning the use of plastic bags without issuing an environmental impact report. The trial court found that the ban would increase the use of paper bags causing a negative environmental consequence so that a CEQA review was required; but the California Supreme Court reversed the decision, holding that the Coalition had not established the plastic bag ban would increase environmental damage, so enacting the plastic bag ban without preparing an environmental report was proper.
Losing Argument
To argue against the San Francisco ordinance, the Save the Plastic Bag Coalition used the Manhattan Beach opinion, despite losing in that case, by arguing that the court’s holding was meant to require CEQA reviews for bans on plastic bags in any city larger than Manhattan Beach.
Haerle disagreed, saying:
“The Coalition . . . bases its argument on an isolated phrase that appears in the Manhattan Beach opinion. According to the Coalition, when the Manhattan Beach court used the term ‘comprehensive environmental review’ in its written decision, it made a ruling that ‘a comprehensive environmental review’ would be required before a plastic bag ban could be adopted by any city larger than Manhattan Beach. . . . [C]ontrary to the Coalition’s theory on appeal, the term ‘comprehensive environmental review’ was not any part of the holding of Manhattan Beach. Indeed, in our opinion, the Coalition’s strained interpretation of this quoted sentence stretches the bounds of reasonable advocacy.”
Regulatory Actions
The coalition also argued that San Francisco should be disallowed from relying on categorical exemptions to the CEQA guidelines because such exemptions only apply to regulatory actions and not legislative actions like the bag ban.
Haerle found this argument to be an unsupported assumption, agreeing with the lower court, which said “when an ordinance, like San Francisco’s Checkout Bag Ordinance, is enacted pursuant to the municipality’s police powers to promote the general welfare, the municipality is acting in its regulator capacity, within the meaning of CEQA . . . [e]xemptions.”
The case is Save the Plastic Bag Coalition v. City and Co, of SF, 13 S.O.S. 35.
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