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Save the Plastic Bag Coalition v. City of Manhattan Beach

January 27, 2010

SAVE THE PLASTIC BAG COALITION PLAINTIFF AND RESPONDENT,
v.
CITY OF MANHATTAN BEACH, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, David P. Yaffe, Judge. Affirmed. (Los Angeles County Super. Ct. No. BS116362).

The opinion of the court was delivered by: Turner, P. J.

CERTIFIED FOR PUBLICATION

I. INTRODUCTION

Defendant, the City of Manhattan Beach (the city), appeals from a judgment issuing a peremptory writ of mandate. The city had issued a negative declaration under the California Environmental Quality Act in connection with an ordinance. (Pub. Resources Code,*fn1 § 21000 et seq.) The ordinance prohibited certain retailers, including grocery stores, from providing plastic bags to customers at the point of sale. The trial court vacated the ordinance and disallowed reenactment pending an environmental impact report. The trial court found 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, therefore an environmental impact report was required. We agree. Accordingly, we affirm the judgment. We do not resolve the question of the ultimate merits of whether the plastic bag distribution ban should be implemented. 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.

II. BACKGROUND

A. The Ordinance

On July 15, 2008, the city adopted Ordinance No. 2115, which prohibits the use of plastic bags in specified circumstances. As set forth in section 1 of the ordinance, the city council found:

"A. 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. [¶] B. Plastic and paper bags each have negative impacts on the environment. It is well known that paper bags require more energy to manufacture and recycle and generate effluent during these processes. It is also known that paper bags are bulkier and heavier than plastic bags. [¶] C. However a primary and significant problem with plastic bags is that they do not biodegrade and are extremely light and easily caught in the wind. In a coastal city like Manhattan Beach even plastic bags which are properly discarded can find their way into the marine environment where they do not break down and essentially remain indefinitely. [¶] D. The Pacific Ocean contains a huge accumulation of debris known as the `Great Pacific Garbage Patch' which consists mostly of plastic debris. Some scientists estimate the density of plastic in this garbage patch as one million pieces of plastic per square mile. While plastic does not bio-degrade it does `photo-degrade' breaking down into smaller pieces which can make their way into the food chain [via] such animals as jellyfish. [¶] E. While the exact numbers are unknown there are many reported instances of marine animals being injured or dying from ingesting or choking on plastic debris in the ocean. It is reasonable to conclude from such information that the presence of plastic debris in the ocean provides a hazard for marine life. [¶] F. Because there is a strong possibility that plastic bags discarded in Manhattan Beach can end up in the ocean where they will last indefinitely and create an aesthetic blight and potential hazard to marine life (and paper bags will not do so because they biodegrade and are less likely to be blown out to sea) it is in the best interests of the public health, safety and welfare to adopt the proposed ban on distribution of plastic bags at point of sale within the boundaries of the City of Manhattan Beach. [¶] G. The City Council of the City of Manhattan Beach conducted a noticed public hearing regarding the project at their regular scheduled meeting of July 1, 2008. The public hearing was advertised pursuant to applicable law and testimony was invited and received. [¶] H. An Initial Environmental Study was prepared in compliance with the provisions of the California Environmental Quality Act. Based upon this study it was determined that the project is not an action involving any significant impacts upon the environment, and a Negative Declaration was prepared and is hereby adopted. [¶] I. The proposed amendments will have no negative impact on Fish and Game resources pursuant to Section 21089(b) of the Public Resources Code." The ordinance added chapter 5.88, Environment Regulations, section 5.88.010 to the Manhattan Beach Municipal Code providing in part: "No Affected Retail Establishment, Restaurant, Vendor or Non-Profit Vendor shall provide Plastic Carry-Out Bags to customers at the point of sale. Reusable Bags and Recyclable Paper Bags are allowed alternatives." "Recyclable Paper Bag" was defined as, "[A] paper bag that meets all of the following requirements: (1) contains no old growth fiber; (2) is 100 [percent] recyclable overall and contains a minimum of 40 [percent] post-consumer recycled content; and (3) displays the words `Reusable' and `Recyclable' in a highly visible manner on the outside of the bag."

B. The Initial Study

The city's goal, as reflected in the ordinance, is to protect the marine environment and marine life. That concern is discussed in the initial study as follows: "The project consists of the adoption of an ordinance which would ban plastic shopping bags, thereby decreasing the prevalence of plastic bag litter in the marine environment in and near the City. . . . [¶] Plastic debris is a major pollutant of coastal waters. In the Pacific Ocean there exists a huge accumulation of debris know[n] as the `Great Pacific Garbage Patch' or "Plastic Soup.' This is an accumulation of mostly plastic debris drawn by currents to accumulate in the area of the northern Pacific Ocean known as the `North Pacific Gyre.' Some scientists estimate the density of the plastic in this region at one million pieces of plastic per square mile. Plastic does not biodegrade so over the past two decades this mass has been growing. Some studies show that plastic photo-degrades breaking into smaller pieces and making its way into the food chain via animals such as jellyfish. [¶] While it may be difficult to ascertain the exact numbers of marine life which perish every year due to ingestion of or choking on plastic debris there are numerous anecdotal accounts of marine life being discovered with plastic debris in their stomachs or clogging their breathing apparatus. [¶] Reducing the use of plastic bags in [the city] will have only a modest positive impact on the migration of plastic refuse into the ocean. However, as a coastal City the imposition of the ban is likely to have some modest impact on improving water quality and removing a potential biohazard from the marine environment."

On the basis of its initial study, the city found the plastic bag distribution ban could not have a significant effect on the environment. The city acknowledged the ordinance may result in greater paper bag use, which could have negative environmental effects including increased: power plant, paper mill and recycling plant emissions; traffic involved in shipping paper bags to retail establishments; and emissions from trucks carrying heavier, bulkier paper bags. The initial study also found reducing the use of plastic bags in the city would have only a modest positive impact on the migration of plastic refuse into the ocean. The initial study concluded, however, that there would be no environmental impact as to aesthetics, agriculture, biological and cultural resources, geology and soils, hazards and hazardous materials, hydrology and water quality, land use and planning, mineral resources, noise, population and housing, fire and police protection, schools and parks, recreation, and utilities and service systems other than landfills. The initial study further found less than significant environmental impact with respect to air quality, traffic and landfill capacity because the increased use of paper bags would be relatively small with minimal or no increase in pollutants generated from production and recycling and increase in truck traffic: plastic bag bans imposed by political subdivisions in California are not widespread; all paper bags used at point of sale in the city would be composed of at least 40 percent recyclable material; the city's population is only 33,852; the ordinance does not ban all use of plastic bags, only their distribution at point of sale; only 11.2 percent of the city is zoned for commercial use; there are only 217 licensed retail establishments in the city that might use plastic bags; there are only two supermarkets, three drug stores, and one Target store in the city known to be high volume users of plastic bags; many restaurants and most fast food outlets use paper bags for take-out orders; plastic bags would not be replaced by paper bags on a one-to-one ratio; a larger portion of paper bags is recycled than plastic; the city represents a small proportion of regional landfill users; and in light of anticipated education efforts, increased publicity and growing public concern for the environment, it was expected that at least some percentage of plastic bags will be replaced by reusable bags rather than paper bags.

C. The Writ Petition

On August 12, 2008, shortly after the ordinance was adopted, plaintiff, Save the Plastic Bag Coalition, filed its verified mandate petition and a declaratory relief request. Plaintiff alleged it is an unincorporated association of plastic bag manufacturers, distributors, and others. Plaintiff further alleged 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 California Environmental Quality Act before banning plastic bags. Plaintiff averred: there was no evidence plastic bags were a continuing significant problem for marine animals; the ordinance will inevitably result in increased use of paper bags, which have greater significant negative environmental effects than plastic bags; the use of paper bags increases consumption of nonrenewable primary energy and water; greater paper bag use increases emission of climate changing greenhouse gases, acid rain, negative air quality, water body eutrophication*fn2 and solid waste production; and paper bags degrade in landfills while plastic bags do not, but decomposing paper produces methane, a potent greenhouse gas. Plaintiff concluded that if the city were required to prepare an environmental impact report, the city council and the public would know the true facts about the ways in which and the extent to which paper bags are worse for the environment and that banning plastic bags would not have any material effect on the environment.

D. The Cited Reports

The parties cited to and relied on several reports in the administrative record discussing the environmental impacts of plastic and paper bag use. We summarize those reports below.

1. The Scottish Government Report

In 2005, a report entitled, "Proposed Plastic Bag Levy-Extended Impact Assessment Report" was produced for and published by the Scottish government. The report was commissioned in response to a bill in the Scottish Parliament to impose an "environmental levy" on lightweight plastic carrier bags as provided by shops and retail outlets. The bill was intended to cover "all bags made partially or completely of plastic" except for those used for directly packing fresh meat, fish, fruit and other foods. The preparers of the report summarized the arguments pro and con: "Advocates of a levy on plastic bags cite the main benefits as being reduced littering (including marine litter), reduced use of resources and energy, lower pollutant emissions and increased public awareness of environmental issues. [¶] Opponents argue that lightweight plastic carrier bags are hygienic, convenient and durable, that they are often reused for other purposes, that they form only a small part of the litter stream and that they have a lower overall environmental impact than paper bags. They also claim that a levy would impact unfairly on poorer households and would lead to job losses in Scotland (from reduced plastic bag manufacturing and importing)." The study considered a range of scenarios, including a levy on both plastic and paper bags. The study took into account an Irish plastic bag levy and voluntary schemes in the United Kingdom along with results from life cycle analysis studies performed in France and Australia.

The Scottish report considered eight indicators of environmental impact: nonrenewable energy consumption; water consumption; greenhouse gas emissions; acid rain; air quality; eutrophication of water bodies; solid waste production; and risk of litter. As compared to a lightweight plastic carrier bag (at a constant of 1.0), a paper bag was found to cause: 1.1 times more nonrenewable energy consumption; 4.0 times the consumption of water; 3.3 times the emission of greenhouse gases; 1.9 times more acid rain; 1.3 times ground level ozone formation; 1.4 times the eutrophication of water bodies; and 2.7 times the solid waste production. Only with respect to risk of litter did the paper bag (0.2) fare better than the plastic bag (1.0). The preparers concluded: a plastic bag tax was likely to increase the use of paper bags as well as reusable bags; due to their physical properties and the impact of their manufacture and transportation, and relative to plastic bag use, use of paper bags had a greater impact on the environment in each of the eight categories except risk of litter; a plastic bag tax would have a negative effect on the environment in terms of water consumption and eutrophication; but because of the trade-off between negative environmental impacts from increased paper bag use and the positive environmental impacts from reduced plastic bag use, the overall environmental effect of a plastic bag levy would remain very similar to no levy at all; and only if a tax were also placed on paper bags would the negative effects on the environment as measured by the eight indicators be significantly reduced.

The preparers summarized their main conclusions: "The analysis shows that there would be an environmental benefit for some of the indicators depending on what consumers choose to use were a levy to be introduced. [¶] . . . [T]he biggest environmental improvement is seen . . . where paper bags are included in the levy. These occur for all environmental indicators. [¶] In scenarios where paper bags are excluded [from the levy], the environmental benefits of reduced plastic bag usage are negated for some indicators by the impacts of increased paper bag usage. This is because a paper bag has a more adverse impact than a plastic bag for most of the environmental issues considered. Areas where paper bags score particularly badly include water consumption, atmospheric acidification (which can have effects on human health, sensitive ecosystems, forest decline and acidification of lakes) and eutrophication of water bodies (which can lead to growth of algae and depletion of oxygen). [¶] . . . [¶] Paper bags are anywhere between six and ten times heavier than lightweight plastic carrier ...


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