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Save The Plastic Bag Coalition v. County of Marin

California Court of Appeals, First District, Third Division

June 25, 2013

SAVE THE PLASTIC BAG COALITION, Plaintiff and Appellant,
COUNTY OF MARIN et al., Defendants and Respondents

Order Date 7/25/13

Marin County Super. Ct. No. CV1100996 Hon. Lynn Duryee

Counsel for Plaintiff and Appellant: Stephen L. Joseph

Counsel for Defendants and Respondents: Patrick K. Faulkner County Counsel (Marin) David L. Zaltsman Deputy County Counsel

Counsel for Californians Against Waste as Amicus Curiae on behalf of Defendants and Respondents: Rachel Z. Vida

McGuiness, P. J.

County of Marin (Marin County or the county) enacted an ordinance intended to encourage the use of reusable bags by banning single-use plastic bags and imposing a fee on single-use paper bags. The ordinance applies to roughly 40 retailers in unincorporated parts of the county. The county determined the ordinance was categorically exempt from the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) because it was a regulatory action designed to assure the maintenance, restoration, enhancement, or protection of natural resources and the environment.[1] Plaintiff Save the Plastic Bag Coalition (plaintiff) sought a writ of mandate directing the county to set aside its ordinance for failure to comply with CEQA. On appeal from a judgment denying the writ, plaintiff raises various arguments supporting its view that the challenged ordinance is not categorically exempt from CEQA. We affirm the judgment.

Factual and Procedural Background

The Marin County Board of Supervisors (board) enacted Ordinance No. 3553 (ordinance) in January 2011. Effective January 1, 2012, the ordinance prohibits certain retail establishments from dispensing single-use plastic bags and requires retailers to impose a reasonable charge of not less than five cents for dispensing a single-use, recycled-content paper bag.[2] (Marin County Code, tit. 5, § 5.46.020, subds. (a) & (b)(2)(D).) Retail customers who participate in certain government-sponsored food programs are exempt from the charge for single-use paper bags. (Id., § 5.46.020, subd. (b)(2)(C).) The ordinance applies only in unincorporated portions of the county. (Id., § 5.46.010, subd. (f).) As a general matter, grocery stores, pharmacies, convenience food stores, and other stores that sell food or perishable items are subject to the ordinance, although restaurants and similar establishments that sell prepared foods are excluded from the law’s scope. (Ibid.) The ordinance establishes the criteria for a bag to qualify as reusable and specifies that reusable bags may not contain lead or other heavy metals in toxic amounts. (Id., § 5.46.030.) A store must make reusable bags available for purchase. (Id., § 5.46.020, subd. (b)(1).)

The county’s effort to stem consumers’ reliance on single-use bags began years before the county passed the ordinance. In 2007, a Marin County task force identified plastic bags as a major solid waste issue. The task force reported that plastic bags have no recycling markets, take 500 years to decompose, and pose a hazard to the environment. In the period from 2007 through 2010, the county held meetings to formulate a strategy to address the use of single-use bags. The “Marin Bag Ban Working Group” convened meetings in 2009 and 2010 to draft a local ordinance. The working group included representatives from government, environmental organizations, retail stores, and suppliers of bags.

In December 2010, the county’s agricultural commissioner sent the board an analysis of a proposed ordinance regulating the provision of single-use carryout bags. As set forth in the commissioner’s report, single-use plastic and paper carryout bags have adverse environmental impacts throughout the state. Litter cleanup alone requires public agencies to spend substantial sums to dispose of discarded single-use bags. In addition, a substantial amount of private and public money is spent removing plastic and paper bags from recycling equipment, storm water systems, streets, sidewalks, and waterways, including the San Francisco Bay. According to the commissioner’s analysis, the ordinance would apply to approximately 40 retail stores in unincorporated areas of Marin County. If a similar ordinance were to be adopted throughout the county by all incorporated cities and towns, the law would apply to a total of 440 retailers.

As set forth in the agricultural commissioner’s analysis, county residents use up to 138 million single-use bags each year that end up in the waste stream. Bags are sometimes baled together and “sent to distant lands for handling—often to be burned or buried.” According to one estimate, California residents pay up to $200 per household annually in taxes and fees to clean up waste associated with single-use bags. The agricultural commissioner stated the ordinance would provide an incentive for consumers to shift from single-use bags to reusable bags. According to the analysis, a shift to reusable bags would conserve resources, reduce the amount of greenhouse gas emissions associated with the production of single-use bags, reduce waste and marine pollution, protect water resources and water quality, and enhance the quality of life for county residents, visitors, and wildlife.

At the time the county was considering the ordinance, state law prohibited local jurisdictions from imposing a fee for single-use plastic bags. (See former § 42254, subd. (b)(2), as added by Stats. 2006, ch. 845, § 2.) In light of this constraint, and in order to encourage consumers to bring reusable bags with them to stores, the county proposed banning single-use plastic bags. To discourage consumers from simply switching from plastic to paper, the county also proposed imposing a fee for single-use paper bags. The agricultural commissioner’s analysis recognized that, while paper bags are recycled at a much higher rate than plastic bags, paper bags generate “significantly larger [greenhouse gas] emissions and result in greater atmospheric acidification, water consumption and ozone production than plastic bags.” The analysis recited the experience in other parts of the nation and world supporting the conclusion that mandatory charges on single-use bags result in significant declines in the use and consumption of bags. Among other things, the commissioner relied on a master environmental assessment prepared by Green Cities California in which it was reported that a ban on single-use plastic bags combined with a five-cent charge for single-use paper bags in the District of Columbia had caused as many as two-thirds of consumers to shift from single-use to reusable bags. After the District of Columbia law went into effect, there was a 50 percent decrease in the number of plastic bags found during an annual cleanup of the Anacostia River watershed.

The agricultural commissioner concluded that “[b]y pursuing a ban on plastic with a mandatory charge on paper, the County can successfully rebut the plastic industry’s challenge that simply banning plastic would shift people from one bad environmental impact (plastic) to another one (paper).” The commissioner also stated that the combination of the plastic bag ban with the charge on paper bags would allow the county to claim a categorical exemption under CEQA “by demonstrating and achieving a result that is environmentally superior: moving people to reusable bags and reducing waste from all single-use products.” The analysis did not specify the statute, regulation, or other basis on which a categorical exemption might be claimed.

After conducting a first reading of the ordinance at a public meeting in December 2010, the board set the matter for a second reading in early January 2011, to be combined with a hearing on the merits of the ordinance. The county published notice of the hearing and allowed the public to send written comments to the board in advance of the hearing.

Plaintiff submitted a lengthy set of objections to the board expressing its opposition to the proposed ordinance, along with over 90 documents that were either cited in the objections or were purportedly supportive of plaintiff’s position. Plaintiff describes itself as a coalition of companies involved in the manufacture or distribution of plastic bags. The purpose of the coalition is to respond to “environmental myths, exaggerations, and misinformation about plastic bags.” Fundamentally, plaintiff objected to the adoption of the proposed ordinance without the preparation or adoption of an environmental impact report (EIR). Plaintiff argued that banning plastic bags may have significant negative impacts on the environment because the alternatives—either paper bags or reusable bags—are worse for the environment. Among other things, plaintiff argued that banning plastic bags would not reduce the cost of litter collection, because there would still be a need to remove litter from streets, parks, and waterways even if there were no plastic bags in the litter stream. Plaintiff also stated that the plastic bag recycling rate had increased significantly since state law required stores to install plastic bag recycling bins. According to plaintiff, it is a “good thing” that plastic bags take many years to biodegrade, reasoning that alternatives such as paper bags emit significant amounts of greenhouse gases when they biodegrade in landfills. Additionally, Plaintiff disputed the claim that large numbers of seabirds and other sea animals are killed by plastic bags, and also challenged the assertion that there is a vast plastic garbage patch in the Pacific Ocean.

The thrust of plaintiff’s objections focused on so-called “life cycle” assessments that evaluate the overall environmental impact of plastic bags compared to paper bags. Life cycle assessments evaluate the local and global environmental impacts of a product’s manufacture and use from “cradle to grave”—i.e., from extraction of raw materials to final disposal of the product. For example, in the case of paper bag production and use, the assessments examine things such as forest decline, water consumed during production, atmospheric acidification from paper manufacturing, contribution to landfills, and generation of greenhouse gases. Plaintiff summarized four specific life cycle assessments that purportedly show paper bags are significantly more damaging to the environment than plastic bags. One such assessment concluded that papers bags have more adverse environmental impacts than plastic bags in that they use more energy and water, emit more greenhouse gases, produce more atmospheric acidification that results in acid rain, cause more ground level ozone to be formed, and generate more solid waste. Plaintiff also argued that the life cycle impacts of reusable bags are worse for the environment than the life cycle impacts of plastic bags, contending that reusable bags consume more raw materials and will likely be discarded in a landfill long before they have been used enough times to offset their greater negative life cycle impacts.

Plaintiff disputed the agricultural commissioner’s conclusion that a five-cent fee for paper bags would provide sufficient incentive to encourage consumers to switch to reusable bags. As for the District of Columbia’s favorable experience with a five-cent fee for paper bags, plaintiff suggested the results there were influenced by a massive reusable bag giveaway program. Plaintiff further argued it was too soon to know with certainty the long-term impact of the District of Columbia law. Citing an EIR completed by Los Angeles County, plaintiff claimed the EIR established that a 10-cent fee for paper bags combined with a plastic bag ban would not be sufficient to prevent significant negative environmental impacts. Plaintiff did not provide the Los Angeles County EIR to the board but instead recited a web address at which the EIR could be accessed.

Observing that the agricultural commissioner had referred to a categorical exemption from CEQA, plaintiff noted it was “not clear” whether the county intended to rely on a categorical exemption. Plaintiff proceeded to address categorical exemptions for projects undertaken to protect a natural resource or the environment, arguing that the county could not rely on a categorical exemption because plaintiff had made “a fair argument that the proposed ordinance may cause significant environmental impacts.”

The board continued the hearing on the merits of the ordinance until January 25, 2011, following the receipt of plaintiff’s lengthy objections to the proposed legislation. In a letter to the board dated January 25, 2011, the county counsel’s office recommended proceeding with the second reading of the ordinance and a public hearing on the merits of the proposed legislation. County counsel conducted its review of the matter at the request of the board in order to address plaintiff’s contention that the county had failed to comply with CEQA. County counsel stated: “In our opinion, exempting the ordinance from CEQA review based upon the categorical exemptions contained in CEQA Guidelines 15307 and 15308[3] (the so-called Class 7 and 8 exemptions), remains valid. There is substantial evidence to support your Board’s conclusion the ordinance is a regulatory measure designed to protect both natural resources and the environment generally. Prohibiting the distribution of single use plastic carry-out bags at many retailers will undoubtedly have a positive environmental impact so long as customers do not merely shift from single-use plastic to single-use paper carry-out bags which also have adverse environmental impacts. And we believe the available evidence still shows that even at a 5 cent charge for paper bags, enough customers will convert to truly reuseable [sic] bags that the net effect of the ordinance will be to reduce the use of both plastic and paper single-use carry-out bags from their current levels in unincorporated Marin County.”

Following the scheduled public hearing, the board adopted the ordinance. On March 2, 2011, the county filed a notice of exemption reflecting that the ordinance is exempt from CEQA under the categorical exemptions set forth in Guidelines sections 15307 and 15308.

Plaintiff filed a petition for a writ of mandate in the Marin County Superior Court, naming as respondents both the county and the Marin County Department of Agriculture, Weights & Measures. Plaintiff sought a peremptory writ of mandate directing the county to set aside the ordinance for failure to comply with CEQA. Plaintiff also sought a declaration that the ordinance is preempted by state law.

The trial court entered an order denying the writ of mandate and declaratory relief requested by plaintiff. The court found there is substantial evidence to support the county’s action in relying on the categorical exemptions contained in Guidelines sections 15307 and 15308. The court noted: “While a clever lawyer can argue that it is a benefit that plastic bags take 500 years to decompose, it was reasonable for the County to conclude that it [is] more beneficial for the environment to avoid the litter and pollution from the plastic bag in the first instance, so that this indestructible trash is not added to the landfill at all.”

Plaintiff appealed following entry of judgment in favor of the county. In its opening brief on appeal, plaintiff clarifies that the appeal is limited to the denial of the writ of mandate sought on the ground the county violated CEQA. Plaintiff does not appeal from the denial ...

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