Dec 10 - CA Courts Once Again Affirm Plastic Bag Ban (Press Release)

For immediate release: December 10, 2013

Contact: Mark Murray (916) 443-5422

In the latest court victory against the plastic bag industry, California’s Court of Appeal, First Appellate District, has affirmed San Francisco's plastic bag ban and upheld a lower court ruling in favor of the City. Similar to the order on the Marin County bag ban case from this summer, the appellant must also pay to recover the City’s costs in dealing with yet another frivolous lawsuit from the industry.

San Francisco passed the first plastic bag ban in the nation in 2007. In 2012, the City expanded its history-making ban to include all retail stores and restaurants, and was subsequently sued by the Save the Plastic Bag Coalition (SPBC) on the basis that the City had failed to comply with California Environmental Quality Act requirements and had included restaurants in the ban.

SPBC argued that the ordinance would potentially result in significant environmental impact, triggering the need for a full Environmental Impact Report rather than the Categorical Exemption that was used, and also argued that California Retail Food Code preempted the banning of plastic carryout bags in restaurants.

San Francisco Superior Court Judge Teri L. Jackson delivered a verbal ruling in favor of San Francisco and its plastic bag ordinance in September of 2012, summarily rejecting both arguments from SPBC. Joseph then challenged the ruling in California’s First Appellate District Court.

The oral argument on the appeal was held on November 12, 2013. Just today, the Court of Appeals released its disposition, written by Justice Paul Haerle and concurred by Justice James Richman and Justice Anthony Cline:

"The judgment is affirmed. Respondents shall recover their costs on appeal."

The Court found that SPBC had failed to establish that the City had erred in choosing a Categorical Exemption or that its ordinance met an "unusual circumstance" exception. In looking at the Supreme Court ruling on the Manhattan Beach bag ordinance case, "...we find nothing...which supports the Coalition’s specific contention that the City cannot rely on a categorical exemption in this case because it is larger than the city of Manhattan Beach."

Additionally, the Court of Appeal agreed with the Superior Court that the bag ordinance was not preempted by the Retail Food Code because it did not establish any health or safety standards:

"the 2012 ordinance regulates single use checkout bags, not food safety."

"This is the fourth time this year that the Courts have rejected a plastics industry challenge to a local plastic bag ban," said Mark Murray, Executive Director of Californians Against Waste. "There is no reason for local governments to hesitate to join the 90 California Cities and Counties that have already voted to reduce plastic pollution in their communities by banning plastic grocery bags."

Challenges to the Los Angeles County bag ordinance as well as the Marin County bag ban were also upheld in the Courts this year. A total of 90 cities or counties across the state, including the inland communities of Davis, South Lake Tahoe, and Truckee, have voted to ban plastic grocery bags. Roughly one in three Californians is living in one of those communities.