Save the Plastic Bag Coalition v. City of Manhattan Beach
|Save the Plastic Bag Coalition v. City of Manhattan Beach|
|Court||Supreme Court of California|
|Full case name||Save the Plastic Bag Coalition v. City of Manhattan Beach|
|Argued||May 4 2011|
|Decided||July 14 2011|
|Citation(s)||52 Cal. 4th 155|
|Prior action(s)||Review granted, California Court of Appeals|
|Reversed the judgment of the Court of Appeals ruling that the City of Manhattan Beach had to prepare an EIR before implementing a ban on plastic bags.|
|Chief Judge||Tani Cantil-Sakauye|
|Associate Judges||Kathryn Werdegar, Ming Chin, Marvin R. Baxter, Carol Corrigan, Joyce L. Kennard, H. Walter Croskey - Associate Justice, Court of Appeal, Second Appellate District, Division 3|
|Concurrence||Cantil-Sakauye, Werdegar, Kennard, Baxter, Chin, Croskey|
|California Environmental Quality Act|
Save the Plastic Bag Coalition v. City of Manhattan Beach is a California Supreme Court case, decided by a full majority, in which the plaintiffs challenged the City of Manhattan Beach's ordinance banning single-use plastic bags.
Introduction and background
On July 14, 2008, the City of Manhattan Beach adopted Ordinance No. 2115 to ban the use of single use plastic bags at "retail establishments, restaurants, vendor or non-profit vendor." The plastic ban ordinance is only applicable to plastic bags used to take goods away from a store, but not produce bags from grocery stores. As stated in Section 1, A of the ordinance, "As a coastal city Manhattan Beach has a strong interest in protecting the marine environment an element which contributes to the unique quality of life in the City."
The City of Manhattan Beach concluded the proposed ordinance would not have a significant effect on the environment and a Negative Declaration was prepared. Subsequently, a writ of mandate was submitted to the Los Angeles Superior Court which was granted and upheld by the Appeals Court. A petition for review was submitted to California Supreme Court by City of Manhattan Beach and on April 21, 2010, the California Supreme Court accepted the City of Manhattan Beach's Petition. On July 14, 2011, by unanimous decision the California Supreme Court upheld the standing of the Save the Plastic Bag Coalition, but reversed the judgment by the Court of the appeals that there was substantial evidence in the administrative record that an environmental impact report should be prepared.
The Plaintiff - Save The Plastic Bag Coalition (the "Coalition") is an unincorporated association. Its members are plastic bag manufacturers, plastic bag distributors, retailers, and concerned citizens. The Coalition was founded by Elkay Plastics and Command Packaging. The coalition grew quickly after the ordinance banning plastic bags was adopted by the City of Manhattan Beach and included several other companies that sell and distribute plastic bags to retail stores, restaurants and other businesses operating in the City of Manhattan Beach.
The Defendant- The City of Manhattan Beach. The City had completed an initial environmental study regarding the environmental impact of banning single-use plastic carry bags. The premise for the ban was that plastic bags make up a significant portion of litter within the city and create a significant eyesore throughout the community. The City of Manhattan performed the initial environmental study in June 2008 to meet the requirements of California Environmental Quality Act (CEQA). Based on that study, the City of Manhattan determined that an Environmental Impact Report (EIR) was not required and a Negative Declaration was prepared and adopted by the City along with the ordinance banning plastic bags on July 15, 2008.
The high-density polyethylene (HDPE) single-use bag was invented by a Swedish company in the 1960s. The single-use plastic bag was introduced into the U.S. by ExxonMobil Corporation and had found its way to grocery stores by 1976. In the United States, there are approximately 92 billion plastic bags used annually by retail industries such as supermarkets and pharmacies as compared to roughly 5 billion paper bags. From a global perspective, it is estimated there are anywhere from 500 billion to 1 trillion plastic bags used each year. Due to concerns over litter and impacts to marine wildlife and environments, many countries have either banned or placed levies on plastic bags. Within the United States, there are 16 states that have introduced some type of legislation banning, imposing fees, or mandating plastic bag recycling. Following the San Francisco 2007 ordinance banning plastic bags, twelve California cities have enacted plastic bag ordinances, including Malibu, Santa Monica, Fairfax, Palo Alto, Long Beach and Manhattan Beach. Similar actions have taken place at the county level in Los Angeles, Marin and Santa Clara counties with numerous other cities and counties following suit with proposed plastic bag ordinances pending activation. In efforts to respond to pressure from retailers and environmental and special interest groups, the plastic bag industry is looking to increase the amount of recycled material in plastic bags to 40% by the year 2015. The plastic bag industry believes that by increasing the recycling of plastic bags, some 463 million pounds of greenhouse gas emissions and 300 million pounds of waste will be avoided on an annual basis.
Research against plastic bags
There are numerous reports and studies regarding the negative impacts associated with single-use plastic bags. A summary of two reports with relevance to this case are provided here. The first is a staff report to the Los Angeles Board of Supervisors on plastic bags which identified several findings including plastic carryout bags being a significant contributor to litter and having detrimental impacts on marine wildlife and the environment. The report also concluded that biodegradable carryout bags were not a practical solution to the issue as there are no local composting facilities available to process biodegradable bags. The final two findings of the report focused on the benefits of reusable bags over plastic as well as paper bags and that the acceleration of the widespread use of reusable bags will lessen the amount of litter from plastic bags. The second report is a comprehensive compilation of information and literature regarding single-use bags found in the Master Environmental Assessment (MEA) on Single Use and Reusable Bags. The intent of the MEA is to provide a comprehensive reference available to cities and counties that can be used to help in understanding the impacts associated with actions targeted at cutting the use of single-use bags. The MEA reports several findings specific to plastic bags, including that "nearly 20 billion single-use high-density polyethylene (HDPE) plastic grocery bags are used annually in California, and most end up in landfills or as litter. In fact, of the four types of bags considered, plastic bags had the greatest impact on litter." The MEA reports that single-use paper bags are recycled more than plastic bags, but considering lifecycles, paper bags contribute to larger greenhouse gas emission, water consumption and ozone production as compared to plastic bags. In comparing plastic bags to biodegradable bags, the MEA found that biodegradable bags had a higher environmental impact at the manufacturing stage and that biodegradable bags may degrade only under composting conditions and will have similar effects on aesthetics and marine life when littered.
Research for use of plastic bags
Several studies cited in the lower court's records assert that the removal of plastic bags from retail stores and shops actually increase the use of paper bags, which are worse for the environment from a sustainability point of view. The Boustead Report documents a life-cycle assessment for biodegradable plastic, recycled/recyclable paper, and recyclable plastic bags. The results of the report show that impact from recyclable plastic bags is the least of all of the bags when considering total energy, fossil fuel use, amount of solid waste, greenhouse gas emissions, and freshwater usage.
A Scottish study evaluated the potential impacts of placing a levy on light-weight plastic bags used by retail shops and other businesses. The study considered several alternatives ranging from placing a levy only on plastic bags at large retailers to placing a levy on plastic and paper bags covering all businesses. The study concluded that environmental benefits would be realized by consumers forgoing the use of lightweight plastic bags and using reusable bags. In each scenario evaluated, consumption of non-renewable energy, atmospheric acidification, the formation of ground-level ozone and the risk of litter decreased as compared to the current use of bags. The study did suggest paper bags have a greater negative environmental impact than conventional plastic carrier bags. If plastic bags are replaced by paper bags, it is estimated that paper bag usage will increase by 174 million bags per year to 213 million per year. This will have associated environmental implications in terms of increased energy use, transport costs, storage space and waste disposal.
A third study evaluated the impacts of the San Francisco Plastic Bag Reduction ordinance which was enacted in November 2007 and banned the use of plastic bags by supermarkets and drugstores. The study was conducted by visiting retail stores and observing checkout procedures and bagging preferences. The study concluded that if the plastic bag ban was intended to reduce impacts to the environment, results of the ban at the time of the study indicated that the ban would not be successful. The study also concluded that the state of California should ensure that recycling bins for plastic bags are present in all major stores as there is still a public desire to recycle plastic bags.
The two issues that were addressed include the following (as stated in the California Supreme Court opinion):
- The standing requirements for a corporate entity to challenge a determination on the preparation of an environmental impact report?
- Was the City of Manhattan Beach required to prepare an environmental impact report on the effects of an ordinance banning the use of plastic bags by local businesses?
On August 12, 2008, the Save the Plastic Bag Coalition submitted a writ of mandate to the Los Angeles Superior Court. The petitioners claim that the City of Manhattan Beach as the lead agency should have prepared an environmental impact report to address the assumptions of using plastic bags on the environment and analyze the impacts to the environment of increased usage of paper bags. Evidence was presented suggesting that using paper bags can have significant environmental impacts.
Included in the writ of mandate was the City of Oakland decision issued in April 2008. The City of Oakland approved a similar ordinance as City of Manhattan Beach using a "common sense" and two categorical exemptions from the California Environmental Quality Act. The Alameda Superior Court determined the City of Oakland had not considered the environmental effects of increased paper bag usage because a Notice of Exemption had been issued.
On February 29, 2009, the petition for a writ of mandate was granted by the Los Angeles Superior Court. The first issue the Superior Court determined was if the petitioner had standing. The petitioner was granted standing because they are not "a for profit corporation that is seeking a commercial advantage over a specific competitor." The second issue decided was that there was enough substantial evidence in the public record to support the conclusion that an environmental import report should be prepared to evaluate the impacts of increased paper bag usage prior to a decision by the City of Manhattan Beach.
California Court of Appeal, 2nd Dist., Case No. B215788
The appeal, written by Judge David P. Yaffe held the Superior Court decision. The opinion reviewed four reports (the Scottish Government Report, the Boustead Report, ULS Report, and the Franklin Report) presented as substantial evidence in the record. The opinion concludes the Save the Plastic Bag Coalition is granted standing because they are a "beneficially interested" party; the ordinance is a "project" pursuant to review subject to the California Environmental Quality Act; and there is a fair argument for the preparation of an environmental impact report.
The opinion highlights the four different reports that concluded, "a plastic bag ban is likely to lead to increased use of paper as well as reusable bags; paper bags have greater negative environmental effects as compared to plastic bags; and the negative environmental effects include greater nonrenewable energy and water consumption, greenhouse gas emissions, solid waste production, and acid rain." Based on a "low threshold for preparation of an environmental impact report" there is substantial evidence in the administrative record to support the conclusion that the plastic ban ordinance may have a significant impact on the environment, which requires the preparation of an environmental impact report to analyze the impacts. The City of Manhattan Beach lawyers argued the geographic size supports the conclusion that increased paper bag is negligible. However, as stated the opinion, the Initial Study prepared by the City of Manhattan Beach did not included this analysis and statutory exemptions from the California Environmental Quality Act do not apply to Cities "based on geographic or population size."
The dissenting opinion, written by Judge J. Mosk, focuses on the language in the ordinance by clarifying the focus of the ordinance is on "distribution (not use) of plastic carryout bags" and "promotes the use of reusable bags (not paper bags) and does not consider the ordinance as a project pursuant to the California Environmental Quality Act. Also, the dissenting opinion, disputes the premise the reports presented are substantial evidence because they are general conclusions about the international plastic bag industry and/or does not specifically address the environmental impacts of plastic bags in a small coastal town in California.
California Supreme Court
The opinion, written by Judge J. Corrigan concludes the Save the Plastic Bag Coalition satisfies the requirement for public interest, whereas the City argued the plaintiff does not have standing based on the Waste Management, supra, 79 Cal.App.4th 1223. The Supreme Court rejected "the Waste Management rule holding corporations to a higher standard in qualifying for public interest standing" and concluded, "the ordinance's ban on plastic bags would have a severe and immediate effect on their business in the City."
On the issue of whether there was a fair argument that City of Manhattan Beach prepare an environmental impact report, the Court ruled that, "Substantial evidence and common sense support the city's determination that its ordinance would have no significant environmental effect. Therefore, a negative declaration was sufficient to comply with the requirements of the California Environmental Quality Act." This decision was based on the "overreliance on generic studies of life cycle impacts" and the Court concluded proper perspective must be adhered in order evaluate environmental impacts.
Other plastic bag litigation in California
Other litigation regarding plastic bag laws in California includes the following:
Save the Plastic Bag Coalition v. City of San Francisco – Petition for Writ of Mandate, dated February 29, 2012. Petitioner seeks a judgment and writ of mandate to set aside, void, annul, and repeal the San Francisco Ordinance banning plastic carryout bags at retail stores, restaurants, and other food establishments, and requiring consumers to pay a 10-cent fee for each paper carryout bag and each compostable carryout bag. Petitioner claims that the ban violates CEQA because an EIR was not completed and that the ban is preempted by the California Retail Food Code.
Save the Plastic Bag Coalition v. City of Long Beach - Petition for Writ of Mandate under CEQA – The Petitioner challenged the City of Long Beach and the selection of its own greenhouse gas significance threshold rather than use the thresholds identified in the Los Angeles County Environmental Impact Report on plastic bags use. The suit was dropped when the City of Long Beach adopted a resolution that adopting the Los Angeles county EIR without any change.
Schmeer et al. v. County of Los Angeles - Petition for Writ of Mandate where petitioner challenged that the $0.10 charge on paper carry-out bags was a tax as defined in the California Constitution and since it was not put out for popular vote it was unconstitutional. Writ of mandate has been denied and a notice of appeal was filed on April 16, 2012.
Save the Plastic Bag Coalition v. The City of Carpinteria – Save the Plastic Bag Coalition filed suit against the City of Carpinteria filing of a city ordinance banning plastic bags on the grounds that the ordinance is preempted by the California Retail Food Code. Case expected to be heard in court in May 2012.
Save the Plastic Bag Coalition v. County of Marin, et al. – Petition for Writ of Mandate. Petitioner filed suit to have the county repeal an ordinance regulating retail stores provision of single-use plastic bags on the grounds that the county of Marin violated CEQA by not completing an EIR. The petition for writ of mandate was denied by the Superior Court on September 14, 2011. As of May 2012, the case was being heard in the 1st Appellate District Court.
Coalition to Support Plastic Bag Recycling v. City of Oakland, et al. – Petition for Writ of Mandate filed and petitioner challenged the legality of a City of Oakland ordinance banning 100% recyclable bags from large retailers on the basis that CEQA had been violated because an environmental review of the impacts of the ordinance had not been completed. On May 16, 2008, an Alameda County Superior Court granted a writ of mandate in favor of the petitioners and ordered the City of Oakland to suspend the ordinance banning plastic bags and not re-enact the ordinance until such time that the City of Oakland had complied with the requirements of CEQA. The City of Oakland did not appeal the decision.
Save the Plastic Bag Coalition v. San Luis Obispo County Integrated Waste Management Authority - Petition for Writ of Mandate was filed on January 1, 2012. Petitioner challenged the legality of an ordinance banning plastic bags and requiring retailers to charge $0.10 per paper bag on the grounds that CEQA had been violated because an environmental impact report had not been completed prior to adoption of the ordinance. There have been no further court actions on this case as of May 2012.
Save the Plastic Bag Coalition v. City of Palo Alto, et al. – Petition for Writ of Mandate filed on April 10, 2009. The Petitioner sought to have a city ordinance prohibiting supermarkets from distributing single-use plastic bags at the point of sale repealed on the basis that the City violated CEQA when they failed to complete an EIR prior to adopting the ordinance. The issues was resolved through a settlement agreement whereby, the suit was dropped and the City of Palo Alto agreed not enact or adopt any ordinance or law that prohibits, places a fee, or regulates the distribution of plastic bags unless the City completes an EIR that complies with the requirements of CEQA. The agreement did not include any ordinance that was enacted prior to March 30, 2009.
- "Save the Plastic Bag Coalition v. City of Manhattan Beach". Retrieved 30 April 2012.
- City of Manhattan Beach. "Ordinance No. 2115". Retrieved 7 May 2012.
- Los Angeles Superior Court, Case No. BS-116362. "• Petition for Writ of Mandate Under CEQA" (PDF). Retrieved 7 May 2012.
- California Court of Appeal, 2nd Dist., Case No. B215788. "• Appellate Order Affirming Superior Court's Grant of Writ of Mandate" (PDF). Retrieved 7 May 2012.
- "Superior Court Case BS116362" (PDF). Retrieved 1 May 2012.
- "Initial Study/Environmental Checklist For The Manhattan Beach Municipal Code Amendment To Prohibit Single-Use Plastic Carry-Out Bags At Commercial Establishments" (PDF). Retrieved 1 May 2012.
- Doucette, Kitt. "The Plastic Bag Wars". Rolling Stone Magazine. Retrieved 4 May 2012.
- Huus, Kari. "Battle of The Plastic Bags". MSNBC. Retrieved 4 May 2012.
- Roach, John. "Are Plastic Bags Sacking the Environment". National Geographic. Retrieved 4 May 2012.
- plasticbaglaws.org. "State and local laws". plasticbaglaws.org. Retrieved 4 May 2012.
- Granger, Trey. "Plastic Bag Industry Invests $50 Million in Recycled Content Bags". Earth911.com. Retrieved May 4, 2012.
- Horovitz, Bruce (21 April 2009). "Makers of Plastic Bags to Use 40% Recycled Content by 2015". USAToday.com. Retrieved 4 May 2012.
- Los Angeles County Board of Supervisors. "An Overview of Carryout Bags in Los Angeles County" (PDF). Los Angeles County. Retrieved 3 May 2012.
- ICF International. "Master Environmental Assessment on Single-Use and Reusable Bags" (PDF). Retrieved 3 May 2012.
- Chaffee, Chet & Yaros, Bernard R. "Life Cycle Assessment for three Types of Grocery Bags" (PDF). Retrieved 3 May 2012.
- Cadman, James; Evans, S; Holland, M; Boyd, R. "Proposed Plastic Bag Levy - Extended Impact" (PDF). Scottish Executive. Retrieved May 2, 2012.
- Lilienfeld, Robert. "A Qualitative Study of Grocery Bag Use in San Francisco" (PDF). Retrieved May 2, 2012.
- Los Angeles Superior Court, Case No. BS-116362. "• Petition for Writ of Mandate Under CEQA" (PDF).
- Los Angeles Superior Court, Case No. BS-116362. "Order Granting Petition for Writ of Mandate Under CEQA" (PDF).
- California Court of Appeal, 2nd Dist., Case No. B215788. "Appellate Order Affirming Superior Court's Grant of Writ of Mandate" (PDF).
- Plasticbaglaws.org. "Litigation". plasticbaglaws.org. Retrieved 12 May 2012.