CA Supreme Court Upholds Plastic Bag Ban

The California Supreme Court ruled unanimously last week to uphold a plastic bag ban in Manhattan Beach, overturning two prior rulings. The plastic bag ban in question was instituted in 2008 by Manhattan Beach, following in step with other California municipalities such as San Francisco and Malibu. The case was being tracked nationally since this was the highest judicial challenge to-date to a growing trend of local governments banning or taxing plastic bags for often ostentatious reasons shrouded in claims that the restrictions help the environment, like a frequently over-hyped claim that plastic bags have formed a Texas-sized trash pile in the Atlantic Ocean.

The reasons for the Manhattan Beach ban weren’t on trial though, at least not directly. The two issues before the CSC were first, whether the Save the Plastic Bag Coalition (SPBC) that brought the suit against Manhattan Beach had standing to under California Environmental Quality Act (CEQA) to sue, and second whether or not the city had to complete an Environmental Impact Review (EIR) under CEQA.

On the first issue the court agreed that SPBC could file because it was representing business that were directly affected by the ban. On the second issue, however, the Supreme Court disagreed with an appellate court that had ruled the EIR did not fall under what is known as the “common sense” provision. Justice Corrigan, writing for the majority said, “the courts below ruled that the city had to prepare an EIR before implementing a ban on plastic bags. We disagree. Substantial evidence and common sense support the city’s determination that its ordinance would have no significant environmental effect.”

Common sense? It would seem that the fact that there was even a case to be made against the ban making its way all the way up to the Supreme Court should signal that there is some disagreement about the environmental effect of plastic bag bans. Common sense would suggest that a plastic bag ban means more use of paper bags. But back in 2008, Reason noted that paper could in fact be worse for the environment than plastic. While paper is more biodegradable, it takes more energy from the environment during the production process than plastic:

One hundred million new plastic grocery bags require the total energy equivalent of approximately 8,300 barrels of oil for extraction of the raw materials, through manufacturing, transport, use and curbside collection of the bags. Of that, 30 percent is oil and 23 percent is natural gas actually used in the bag-the rest is fuel used along the way. That sounds like a lot until you consider that the same number of paper grocery bags use five times that much total energy. A paper grocery bag isn’t just made out of trees. Manufacturing 100 million paper bags with one-third post-consumer recycled content requires petroleum energy inputs equivalent to approximately 15,100 barrels of oil plus additional inputs from other energy sources including hydroelectric power, nuclear energy and wood waste.

This comment by itself should warrant at least a small review by Manhattan Beach into the potential negative environmental impact of a plastic bag ban.

But this was ignored by the state Supreme Court. SPBC did argue that because life-cycle analysis shows paper bags to be more environmentally harmful than plastic bags the government should have completed an EIR to gauge the impact of the law. Manhattan Beach argued that the law’s effects would be too small to merit such an EIR and generally environmentally positive. But there is no way they could know that to be sure without a review.

This sets a precedent for future EIRs. In cases where the environmental impacts are small or assumed to be positive, the city council will not have to review the possibility of harm that their actions will have.

Politically developed “common sense” 1, scientific research 0.

Interestingly, both sides of the plastic bag debate claim to be happy with the decision, with, a group which favors bans, noting the expansion of the “common sense” provision, and SPBC enjoying new legal standing to continue filing lawsuits. The great plastic bag war isn’t over.

See the whole court decision here.