Thursday, January 28, 2010
Court of Appeal Throws Out Manhattan Beach Plastic Bag Ban
By STEVEN M. ELLIS, Staff Writer
The City of Manhattan Beach must fully analyze the environmental impact of increased paper bag use before it can ban retailers from providing plastic bags to customers, a divided panel of this district’s Court of Appeal ruled yesterday.
In a victory for the Save the Plastic Bag Coalition, a group of manufacturers, distributors and suppliers, Div. Five held that the California Environmental Quality Act required an environmental impact report given evidence increased paper bag use might significantly affect the environment.
The city passed the ordinance in July 2008, citing concern over the marine environment. It prohibits certain retailers, including grocery stores, from providing plastic bags to customers at the point of sale, but allows them to provide reusable or recyclable paper bags.
The city concluded an environmental impact report was not required after an initial study found the ban was likely to have “some modest impact on improving water quality and removing a potential biohazard” and only limited negative effects from increased paper bag use.
However, the coalition—pointing to studies supporting its conclusions that the ban was likely to lead to increased paper bag use and that paper bags have comparatively greater negative effects, including greater nonrenewable energy and water consumption, greenhouse gas emissions, solid waste production and acid rain—disagreed and brought suit.
The group claims it was formed to counter myths, misinformation and exaggerations about plastic bags by various groups purporting to promote environmental quality and to require governmental agencies to comply with the CEQA before banning plastic bags. Its counsel, San Francisco attorney Stephen L. Joseph, contends an environmental impact report would show the public “the fact that paper bags are far worse for the environment.”
Manhattan Beach City Attorney Robert V. Wadden Jr. said the matter was “a case where the industry tried to use environmental law to prevent the city from taking action to protect the environment.”
Writ of Mandate
The coalition sought a writ of mandate and Los Angeles Superior Court Judge David P. Yaffe granted relief, vacating the ordinance and disallowing re-enactment pending an environmental impact report. Yaffe found that substantial evidence supported a fair argument the ordinance may cause increased use of paper bags, which may have a significant negative impact on the environment, requiring an environmental impact report.
The city appealed, but Presiding Justice Paul Turner wrote that Yaffe acted correctly.
“We do not resolve the question of the ultimate merits of whether the plastic bag distribution ban should be implemented,” he said. “All we are saying is that an environmental impact report must be prepared given that it can be fairly argued based on substantial evidence in the record that the ordinance may have a significant environmental impact. We emphasize that the fair argument test sets a low threshold for preparation of an environmental impact report and reflects a preference for resolving doubts in favor of environmental review.”
Justice Sandy R. Kriegler joined Turner in his opinion, but Justice Richard M. Mosk dissented, saying the impact of a ban by the small residential city was not significant enough to require the report.
“In this day of limits, we must interpret statutes reasonably so as not to require the unnecessary expenditure of public monies for no corresponding benefit,” he wrote.
Joseph told the MetNews the opinion was important “because it affirms that cities and counties must be held to the same kind of standard when it comes to telling the truth.”
Calling it “a victory for truth,” he added: “They can’t just say whatever they want, environmentally speaking. They can’t pull facts from the air.”
Joseph also called the case a “victory for voters because they will now know the environmental values and understand the decision-making of their elected representatives,” and commented that a challenge to Los Angeles County’s authority to impose such a ban is currently pending.
Wadden said he was disappointed by the decision, but said he would not be recommending an appeal. He said the city’s next step was to prepare the report, and that it might try to join with other public agencies considering similar bans in order to reduce expenses.
He also said he expected further challenges from the coalition when a report is completed.
“They’re well-organized, and put on a full-court press,” Wadden said. “This has been a real battle.”
The case is Save the Plastic Bag Coalition v. City of Manhattan Beach, B215788.
Copyright 2010, Metropolitan News Company