How Does a Local Government Protect Itself From Litigation?
Every jurisdiction must determine if its proposed ordinance will have a significant adverse environmental impact. Some jurisdictions have determined that their ordinances are categorically exempt from California Environmental Quality Act (CEQA) requirements under CEQA Guidelines, sections 15307 and 15308. Others have initiated CEQA review and found that there are no significant adverse impacts, resulting in a Negative Declaration or Mitigated Negative Declaration. Still others have conducted a full Environmental Impact Report (EIR).
EIRs can provide valuable protection for the environment. However, we do not believe that full EIRs are necessary for plastic bag ban ordinances. In fact, CAW believes that plastic bag bans are exempt from CEQA because a plastic bag ban ordinance will provide an environmental benefit and significantly reduce—not increase—pollution. This effect is further amplified when a plastic bag ban is paired with a price requirement on paper bags--with the main goal being overall reduction of all single-use bags. We also believe that laws mentioned by STPBC in past lawsuits (AB 2449, Retail Food Code) do not preempt any types of local bag bans.
Local governments should conduct thorough and careful research to determine the effects of a proposed bag ordinance in their project areas. They should keep a strong administrative record of all data considered.
Some cities have decided to conduct EIRs under CEQA. These include the City of San Jose, the County of Los Angeles and Green Cities California (a consortium of municipalities). Other local governments have conducted Negative Declarations or Categorical Exemptions. For a full list of local bag ordinances and CEQA strategies used, see our fact sheet on our Bag Ban Tool Kit.