A Tale of Two Agencies

One public agency, the Alameda County Waste Management Authority, adopts an ordinance banning plastic carryout bags and requiring stores to charge 10 cents for other bags, and avoids litigation. Marin County adopts a similar ordinance and 30 days later an organization calling itself “Save the Plastic Bag Coalition” files a lawsuit to invalidate the ordinance. Why does one agency face expensive time-consuming litigation while another can move forward with implementation of its environmentally protective ordinance? As agencies contemplate bans on plastic bags and other ordinances to protect the environment, they often consider how to best avoid costly litigation. The content of the ordinance and the type of environmental review undertaken often determine whether the ordinance is vulnerable to litigation that could prevent or delay its implementation.

Plastic Bag Bans Throughout the State

In the past decade, many cities, counties and other public agencies have enacted legislation to protect the environment. Local laws that require recycling, mandate the use of green building materials, or prohibit stores from giving customers plastic bags for carryout purchases are just a few examples. In California, 44 jurisdictions have already adopted ordinances banning plastic carryout bags, and many more jurisdictions are considering such regulations. Californians use approximately 14 billion plastic bags annually, and the average use time of each plastic bag is only 12 minutes. After that, plastic bags often litter streets, pollute storm drains, creeks and the ocean, damage wetlands, and entangle and kill animals. Jurisdictions as diverse as San Francisco, Los Angeles, Carpinteria, Manhattan Beach, Long Beach, Encinitas, Sacramento and Humboldt County have all sought to reduce the use of plastic bags. Some of the adopted ordinances cover only large stores that sell packaged foods. Others cover all retail. A few include restaurants. Many not only ban plastic bags but require stores to charge customers for paper or other bags. So far, at least 11 agencies have faced litigation over the adoption of such ordinances.

CEQA Challenges