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Court trashes city’s plastic bag ban

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The city’s fledgling ban on plastic bags was sacked for the second time last Wednesday.

A divided 2nd District Court of Appeal upheld a ruling that demands the city conduct an environmental impact report (EIR) before requiring local retailers to find other alternatives for bagging goods.

The 2-1 decision was a victory for the Save the Plastic Bag Coalition, who sued the city almost two years ago alleging the ban was not compliant with the California Environment Quality Act (CEQA).

“They are using one environmental law to prevent passing another environmental law,” said city attorney Robert Wadden, who handled the city’s case at both the trial and appellate courts.

The City Council unanimously adopted the ordinance in July 2008, with the intention of minimizing plastic debris in the ocean and ultimately phasing into reusable bags.

The proposed ban prohibited grocery stores, food vendors, restaurants, pharmacies and city facilities from using plastic bags at the point of sale. It would have made Manhattan Beach the third city in the state to become plastic bag-free, after San Francisco and Malibu.

The city chose not to conduct an EIR — which is required by CEQA when there is substantial evidence that a project may have a significant effect on the environment — and instead opted for a detailed staff report.

“Our initial study finding was that there was no substantial impact to the environment,” Wadden said. “We genuinely felt plastic bags are more of a burden than paper bags.”

On their website, the city points to studies by the California Integrated Waste Management Board that claim 6 billion plastic bags are consumed each year in the state, with less than five percent being recycled.

But the coalition — an unincorporated lobbyist group formed of seven plastic bag retailers and a plastic bag recycling company — challenged the city’s decision. They argued that that a ban on plastic bags would negatively affect the environment by increasing paper bag usage, which the group claims is more harmful to the environment.

“When we see paper bags, we know they are worse for the environment,” said Stephen Joseph, attorney for the coalition. “If we know this, how can we not stand up to Manhattan Beach?”

He pointed to studies that claim paper bags give off more carbon emissions and take up more space in the state’s landfills than plastic bags. He suggested that since paper bags are often double bagged, such a ban would increase waste two-fold.

“If you ban plastic bags in California, you’re looking at the equivalent of 210,645 extra passenger vehicles on the road,” he said. “How could anyone think that’s good for the environment?”

 At a June 2008 City Council meeting, the coalition threatened litigation if the city moved forward with the ban without first conducting an EIR, having already won a similar case against the  city of Oakland two months earlier.

The City Council ignored the request and passed the ordinance that July.  A month later, the coalition sued Manhattan Beach and won in what Wadden called a precedent-setting case.

Last March, the city appealed the court’s decision, only to get the same answer in last week’s ruling.

“All we are saying is that an environmental impact report must be prepared given that it can be fairly argued … that the ordinance may have a significant environmental impact,” Judge Paul Turner wrote in the decision issued by the court.

Joseph said that the decision will allow the truth to come out.

“We know plastic bags have an impact,” Joseph said. “But so do paper and reusable bags. Let’s get the truth on the table so people can say this is based on evidence.”

Manhattan Beach isn’t buying it.

“It’s obvious this is about protecting their product,” Wadden said. “To their credit, they’ve been up front about that.”

“That is utterly untrue,” Joseph said. “I’ve never said that. I’ve never even thought it. They don’t know anything about us. This is an environmental truth campaign from beginning to middle to end. We don’t believe myths are acceptable forms of truth and a staff report is not a substitute for an EIR.”

Dissenting Judge Richard Mosk agreed with the city that the ban would have little significant environmental impact and that no EIR is necessary.

“Requiring the small city of Manhattan Beach… to expend public resources to prepare an environmental impact report for enacting what the City believes is an environmentally friendly ordinance …stretches the California Environmental Quality Act  and the requirements for an EIR to an absurdity,” he said.

Wadden estimated that an EIR will cost a minimum of $50,000 to $75,000. The city is considering sharing costs on a report with L.A. County and Santa Monica, which are both trying to pass similar bans.

Other options would be to drop the ban altogether or file another appeal.

“The next step would be the California Supreme Court,” Wadden said. “It will be up to the City Council whether to go forward on that.” ER


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