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Save the Plastic Bag Coalition v. City of Manhattan Beach

July 14, 2011


Court: Superior County: Los Angeles Judge: David P. Yaffe

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

Ct.App. 2/5 B215788 Los Angeles County Super. Ct. No. BS116362

Here we consider two questions: (1) What are the standing requirements for a corporate entity to challenge a determination on the preparation of an environmental impact report (EIR)? (2) Was the city of Manhattan Beach required to prepare an EIR on the effects of an ordinance banning the use of plastic bags by local businesses?

Plaintiff, a coalition of plastic bag manufacturers and distributors, claims standing to maintain a citizen suit to vindicate the public interest in environmental quality. The trial court and the Court of Appeal granted plaintiff standing on that basis. Both courts rejected the city's argument that plaintiff had failed to make the enhanced showing required by Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1238 (Waste Management) for corporate entities to bring a citizen suit. We agree that plaintiff would qualify for public interest standing here, and disapprove Waste Management's holding that corporations are subject to heightened scrutiny when they file citizen suits. We also conclude that plaintiff, which represents businesses directly affected by the Manhattan Beach ordinance, has standing in its own right to challenge the city's analysis of environmental impacts.

On the merits, 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. Therefore, a negative declaration was sufficient to comply with the requirements of the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.).*fn1 Accordingly, we reverse the Court of Appeal's judgment.


On June 3, 2008, the city manager of Manhattan Beach issued a staff report recommending the adoption of an ordinance banning the use of "point-of-sale plastic carry-out bags" in the city. The proposed ordinance included a finding that CEQA did not apply because the ban would have no significant effect on the environment (Cal. Code Regs., tit. 14, § 15061(b)(3)), and because it qualified as a regulatory program to protect the environment (id., § 15038).

Plaintiff, describing itself as "a newly formed group of companies that will be affected by any ordinance to ban or impose fees on plastic bags," objected to the proposed ordinance.*fn2 It claimed that the movement to ban plastic bags was based on misinformation and would increase the use of paper bags, with negative environmental consequences. Plaintiff notified the city that it would sue if the ordinance was passed without a full CEQA review.

The city then conducted an initial study evaluating the environmental impacts of the proposed ordinance. The study noted: "Reducing the use of plastic bags in Manhattan Beach 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." The study recognized that a switch from plastic to paper bags would have some negative environmental consequences. More energy is needed to manufacture and distribute paper bags, and more wastewater is produced in their manufacture and recycling. However, the study concluded that the impacts of a plastic bag ban would be less than significant, for the following reasons:

"The population of Manhattan Beach is only 33,852 according to the 2000 census. However, per capita bag usage would provide an inflated measurement of any net increase in paper bag use since the proposed ordinance does not ban the use of plastic bags by residents but [rather] their distribution at point of sale. Only 11.2% of the City is zoned commercial and there are only 217 licensed retail establishments within the City which might use plastic bags. There are only two supermarkets, three (and two future) drug stores, and one Target store known to be high volume users of plastic shopping bags in the City which would be affected by the ban. The remaining businesses tend to be smaller and lower volume and many restaurants and most fast food outlets already use paper bags for take out orders.

"Plastic bags would not be replaced by paper bags on a one to one ratio since paper bags have a higher capacity. One study (commissioned by the plastic bag industry) estimates that for every 1500 plastic bags it would take 1000 paper bags to replace them. Other studies find that paper bags may hold up to four times the volume of plastic bags. In light of anticipated education efforts, increased publicity (partially resulting from the subject ordinance), and the public's increased concern for pollution and water quality, at least some percentage of plastic bags are expected to be replaced by reusable bags rather than paper bags."

The initial study observed that the ordinance would require paper bags "to have 40% recycled content reducing landfill demand and encouraging reduced use with increased costs for paper bags. . . . The substitution of paper bags for plastic that does occur, although larger in mass per square foot compared to plastic, would not significantly impact landfill capacity since a larger portion of paper bags is recycled than plastic, substituted paper bags will be at least 40% paper diverted from landfills, and the City of Manhattan Beach represents a small proportion of regional landfill users."

Based on these considerations, the initial study concluded that any increase in the use of paper bags in Manhattan Beach would be relatively small, with minimal impacts on energy use, air quality, water quality, vehicle traffic, and solid waste facilities. It noted that the ordinance posed no environmental threat to fish, wildlife, plant communities, historical resources, or human beings. On the other hand, it would decrease the prevalence of plastic bag litter, both in the city itself and in the ocean. Therefore, the study recommended adoption of a negative declaration finding that the ordinance could not have a significant effect on the environment.

Plaintiff again objected and threatened litigation if the ordinance was adopted. Plaintiff referred to two studies, one prepared in 2005 by the Scottish government and one issued in 2008 by the editors of an on-line newsletter, the Use Less Stuff (ULS) Report. Both concluded that the "life cycle" of paper bags, including their manufacture, transport, and disposal, has a greater environmental impact than the "life cycle" of plastic bags. Plaintiff contended this evidence established a reasonable possibility that increased use of paper bags as a result of the proposed ordinance would have a significant negative effect on the environment, requiring the preparation of a full EIR.

On July 1, 2008, the city issued another staff report addressing the "life cycle" studies. In addition to the Scottish and ULS studies, city staff had reviewed a Washington Post report; a 1990 study by Franklin Associates, Ltd.; an analysis conducted by the Fund for Research into Industrial Development, Growth and Equity; and a 2007 report by Boustead Consulting & Associates Ltd. The staff report also discussed a comparative analysis of bag "life cycle" studies prepared by the South African Department of Trade and Industry. The report noted that varying assumptions were employed from study to study, and that "differing results from the [studies] could be selectively used to lend support to proponents of either plastic or paper bags." The South African analysis had concluded that "life cycle" studies were "sensitive to and limited by factors such as scope, objectivity, geography, climate, and energy sources," and "can be constructed to carry a specific message by carefully selecting the impacts to examine." City staff recommended adopting the proposed ordinance, and embarking on "an aggressive education and outreach program to inform our residential and business community of the ban and to promote the use of reusable bags."

The Manhattan Beach City Council adopted ordinance No. 2115 on July 15, 2008. The council's findings are set forth in section 1 of the ordinance:

"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 ...

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