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Save Plastic Bag Coalition v. City & County of San Francisco

California Court of Appeals, First District, Second Division

December 10, 2013

SAVE THE PLASTIC BAG COALITION, Plaintiff and Appellant,
v.
CITY AND COUNTY OF SAN FRANCISCO, et al. Defendants and Respondents.

Certified for publication 1/3/14

San Francisco County Super. Ct. No. CPF-12-511978, Hon. Teri Jackson, Trial Judge

Attorney for Plaintiff and Appellant Save the Plastic Bag Coalition Stephen Laurence Joseph

Attorney for Defendant and Respondent City and County of San Francisco Dennis J. Herrera, City Attorney, Wayne K. Snodgrass, James M. Emery, Deputy City Attorneys

Haerle, J.

I. INTRODUCTION

In 2012, the City and County of San Francisco (the City) enacted an ordinance which expanded existing restrictions on the use of “checkout bags” by retail establishments in the City (the 2012 ordinance). Appellant Save the Plastic Bag Coalition (the Coalition), a group of plastic bag manufacturers and distributors, filed a petition for a writ of mandate seeking to invalidate the 2012 ordinance on several grounds. The superior court denied that petition and entered judgment in favor of the respondents, the City and two of its departments. On appeal, the Coalition contends the 2012 ordinance is invalid because (1) it does not comply with the requirements of the California Environmental Quality Act, Public Resources Code section 21000 et seq. (CEQA); and (2) it is preempted by the California Retail Food Code, Health and Safety Code section 113700 et seq. (the Retail Food Code). [1] We reject these contentions and affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

In April 2007, the City enacted San Francisco Ordinance No. 81-07, a “Plastic Bag Reduction Ordinance” which required the “use of compostable plastic, recyclable paper and/or reusable checkout bags” by large supermarkets and retail pharmacies located within the City.

In 2010, a member of the City’s Board of Supervisors initiated a project to enact an ordinance which would, inter alia, extend the existing restrictions on the use of checkout bags to apply to all retailers and food establishments in the City, require stores to charge customers for checkout bags, and institute a community outreach program to encourage reusable bag use.

On November 10, 2011, the City’s Planning Department issued a “Certificate of Determination of Exemption” for the project. The Planning Department determined that the proposed ordinance was a regulatory action that would protect natural resources and the environment generally and was, therefore, categorically exempt from further CEQA review under sections 15307 and 15308 of the CEQA “Guidelines.” (Cal. Code Regs., tit. 14, §§ 15307 & 15308.)[2] The certificate consisted of a 12-page report in which the Department summarized the facts and evidence it considered to make this determination and set forth the following conclusions regarding the “environmental impacts” of the proposed ordinance:

“Single-use plastic bags have known environmental impacts to aesthetics, air quality and GHG emissions, hydrology and water quality, water usage, and biological resources. The proposed project would eliminate single-use plastic bags at ‘stores’ within San Francisco, thereby protecting the environment from the impacts associated with single-use plastic bags. By eliminating single-use plastic bag use at more ‘stores’ covered by the ordinance, the proposed project would result in greater use of single-use paper bags, single-use compostable bags and reusable bags. Single-use paper bags and compostable bags have greater environmental impacts on air quality and GHG emissions and water usage than single-use plastic bags and reusable bags (or no bag at all) have lesser environmental impacts in all categories than single-use plastic bags. Studies have shown that banning single-use bags and imposing a mandatory charge on single-use bag use of paper and combustible bags results in an increase in reusable bag and no bag use and a decrease in single-use bag use. Because the proposed project would ban single-use plastic bags and impose a mandatory charge on single-use paper and compostable bags at all ‘stores’ in San Francisco and the proposed project would include a public education campaign aimed at promoting reusable bags, the proposed project would protect the environment and not have a significant impact on the environment.”

On November 14, 2011, a draft of the proposed ordinance was presented to the City’s Board of Supervisors at a public meeting where public comment was invited. Although the overwhelming majority of the speakers supported the proposal, an attorney representing the Coalition opposed it and put the City on notice that the Coalition would file a lawsuit to preclude enforcement of the proposed ordinance. Over the course of the next several weeks, the Coalition submitted hundreds of pages of “legal objections” to the proposed ordinance along with “supporting exhibits.” [3] Between November 2011 and February 2012, the City Board of Supervisors conducted several public hearings and made some modifications to the draft of the proposed ordinance including eliminating a proposal to increase the amount of the 10-cent bag charge.

On February 6, 2012, the Planning Department reaffirmed its prior conclusion that the proposed ordinance was categorically exempt from further environmental review. It stated: “Since the time of the Categorical Exemption Determination, the Board of Supervisors has eliminated the proposal for increasing the charge to 25 cents and has changed the operative date of the ten cent checkout bag charge to October 1, 2012. In addition, members of the public, specifically Stephen L. Joseph on behalf of [the Coalition], have submitted additional comments and material. EP [the Environmental Planning Division of the San Francisco Planning Department] has reviewed the changes to the ordinance made by the Board of Supervisors and determined that the changes do not alter the conclusions in the Categorical Exemption Determination. EP has also reviewed the additional comments and materials received from the public and determined that the materials submitted do not constitute substantial evidence indicating that an Environmental Impact Report would be required for this Ordinance. No new information has been presented to indicate that the Categorical Exemption is inappropriate or that there are any unusual circumstances associated with this proposed [ordinance]. Therefore, we have determined that the analysis set forth in the Categorical Exemption Determination is unchanged.”

In February 2012, the City enacted San Francisco Ordinance No. 33-12, i.e., the 2012 ordinance. The City set forth its findings in section 2 of the ordinance:

“1. The City and County of San Francisco has adopted citywide goals of 75 percent landfill diversion by 2010 and zero waste by 2020.

“2. The broad use of single-use checkout bags and their typical disposal creates an impediment to achievement of San Francisco’s landfill diversion goals.

“3. Plastic checkout bags are difficult to recycle and contaminate material that is processed through San Francisco’s recycling and composing programs.

“4. Single-use checkout bags create significant litter problems in San Francisco’s neighborhoods, and also litter parks, community beaches, sewer systems, and the San Francisco Bay.

“5. The production and disposal of single-use checkout bags has significant environmental impacts, including the contamination of the environment, the depletion of natural resources, use of non-renewable polluting fossil fuels, and the increased clean-up and disposal costs.

“6. Of all single-use checkout bags, plastic checkout bags have the greatest impacts on litter and marine life.

“7. Governments in several countries have placed fees on bags, including the Republic of Ireland, which achieved a 90 percent decrease in the use of single-use plastic checkout bags due to the fee.

“8. Studies document that banning plastic checkout bags and placing a mandatory charge on paper checkout bags will dramatically reduce the use of both types of bags and increase customers’ use of reusable bags.

“9. Reusable bags are readily available with numerous sources and vendors for these bags. Many stores in San Francisco and through the Bay Area already offer reusable bags for sale at a price as low as 25 cents.”

The 2012 ordinance amended the San Francisco Environmental Code by, inter alia, (1) extending existing restrictions regarding the provision of checkout bags to apply to all retail stores; (2) imposing a new 10-cent charge for single-use check-out bags, which could be used if they were either a compostable plastic bag or a paper bag made with a minimum of 40 percent recycled content; and (3) establishing an outreach and education program for stores and customers. The 2012 ordinance provided that the new restrictions would become effective as to all retail stores, except retail food establishments, in October 2012, and to retail food establishments in July 2013.

On February 29, 2012, the Coalition filed a petition for a writ of mandate under CEQA and a complaint to invalidate the 2012 ordinance on the ground it was preempted by the Retail Food Code. On June 14, 2012, the superior court denied the Coalition’s motion for a preliminary injunction and stay of enforcement of the ordinance. On August 27 and 28, 2012, the Honorable Teri L. Jackson conducted a hearing on the merits of the Coalition’s petition for writ of mandate and complaint alleging preemption. On September 20, 2012, the court filed an order denying the writ petition and dismissing the preemption claim. The following week, the court denied the ...


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