Growing media attention has been placed on the potential impacts facing the marine environment and human health due to the rapidly growing use of single-use products and packaging. Since China’s ban on the importing of most materials headed to its recycling processors in 2018 through its “National Sword” policy, local, regional, and national governments worldwide have turned their mind to enacting laws that reduce the consumption of single-use plastic, instead of focusing solely on improving the recycling or littering of these items.
Many of these initiatives have, however, encountered their fair share of legal challenges. These challenges provide cautionary tales as well as blueprints for success when implementing reduction policies. This article highlights trends in the lawsuits brought against local governments seeking to enact rules to stem the growing tide of plastic waste in the U.S. and Canada.
THE UNITED STATES
Your Ordinance Violates a Preemption Clause in a State Statute
Just six days after the Board of County Commissioners of Alachua County voted to ban expanded polystyrene (EPS) containers (commonly referred to as Styrofoam) and single-use plastic bags, the Federal Retail Federation and Florida Restaurant and Lodging Association sent the Board a letter threatening a lawsuit.
The letter asserted that the ordinance violated a Florida Statute that prohibited local government, local government agencies, or state government agencies from enacting laws regarding the use, disposition, sale, prohibition, restriction, or tax of containers, wrapping or disposable plastic bags. Such state preemption laws are common in the U.S. and have threatened similar local measures in other states. In this case, the threat of a lawsuit on the basis of the preemption law was sufficient to cause Alachua County to repeal the ban.
You Should Have Conducted an Environmental Impact Report
In the third iteration of what was referred to as the “plastic bag wars”, the Save the Plastic Bag Coalition sued San Francisco after it mandated a 10-cent fee on checkout bags in 2012. The Coalition argued that the law failed to comply with the California Environmental Quality Act.
The Coalition argued that San Francisco was under an obligation to prepare an Environmental Impact Report to determine whether the increased use of paper or compostable bags would create other environmental problems. It had unsuccessfully made this claim against Manhattan Beach and Marin County over their plastic bag ban ordinances. The Coalition even relied on the decision rendered against it in the Manhattan Beach case to state that, while the cumulative impacts of paper or compostable bags use might be negligible in a city as small as Manhattan Beach, they would be significant in San Francisco given the large presence of tourists and commuters who are unlikely to use reusable bags.
In December 2013, the First District Court of Appeal rejected the Coalition’s arguments and sided with San Francisco in upholding its fee on checkout bags.
You Misrepresented Information on Recyclability
Shortly after its first EPS ban took effect in July 2015, New York City’s Department of Sanitation (DSNY) was sued by restaurants and plastics manufacturers who claimed that the Sanitation Commissioner had misrepresented information that EPS foam could not be recycled in order to support their ban. And, in September 2015, a judge ruled in the industry’s favour on the basis that the Commissioner had not clearly stated the basis of her conclusions. This led New York to stop enforcing the ban.
As a result of the lawsuit, DSNY conducted a more thorough study that assessed whether EPS foam was recyclable. The study concluded that it was not, and the DSNY announced that it would go forward with the EPS ban on January 1, 2019. The study allowed DSNY to prevail in a second lawsuit by the same restaurant alliance and businesses. This time, the court ruled in favour of DSNY, finding that the Commissioner’s study presented sufficient evidence justifying her conclusion that EPS foam could not be recycled in an “environmentally effective and economically feasible” manner.
Your Paper Bag Fee is Actually an Unconstitutional Tax
The City of Aspen, Colorado, was met with a lawsuit when it decided to implement a plastic bag ban and a $0.20 fee on paper bags at local grocery stores in 2012. The Colorado Union of Taxpayers Foundation argued that Aspen’s fee on paper bags was unconstitutional as it was a tax that required a vote by residents under the Colorado Taxpayer’s Bill of Rights.
Six years following the implementation of the ban, Aspen obtained a 4-3 ruling in its favour from the Colorado Supreme Court upholding the fee on paper bags. The Court found that the fee was not a tax because it was used to offset the costs of a municipal waste-reduction program, not to raise revenue for the general expense of government. There was also a reasonable relationship between the fee imposed and Aspen’s costs of permitting the use of paper bags.
You Did Not Seek Approval for Your Ban
Progressive efforts appeared undone in Victoria, British Columbia, when the province’s highest court sided with the Canadian Plastic Bag Association (CPBA) in quashing the City’s bag ban by-law in July of this year. Victoria had passed the by-law by characterizing it as being related to business.
The B.C. Court of Appeal disagreed with this characterization and concluded that the by-law was in substance a law intended to protect the environment. The Court observed, among other things, that the initiative for the by-law had come from the Vancouver Island chapter of the Surfrider Foundation, an environmental non-profit organization. As environmental law, the by-law required the approval of British Columbia’s Minister of Environment under section 9 of the Community Charter, Victoria’s governing statute.
You Acted in Bad Faith
In 2012, the City of Toronto also faced a lawsuit from the Canadian Plastic Bag Association (the party who successfully challenged the Victoria bag ban) over adopting a plastic bag ban that was projected to come into force in January 2013.
The CPBA asserted that the ban was unlawful and passed in “bad faith” because Toronto City Council had not received any advice, evidence or opinion that the ban would “further the economic, social and/or environmental well-being of the city or would protect the health, safety and well-being of any person.” The main argument of the lawsuit was that the ban was not subjected to public consultation at the committee stage.
The Ontario Convenience Store Association and the Toronto Taxpayers Coalition also joined the CPBA to challenge the proposed ban. As a result of this pressure, City Council voted to repeal its June 2012 decision to impose a ban in November 2012.
In drawing its conclusions in the Victoria bag ban case, the B.C. Court of Appeal nonetheless remarked that, “the law in question has an objective that most reasonable people would endorse.” There is no question that local, regional, or national bodies will increasingly look to implement a variety of mechanisms to reduce single-use plastic waste within their territories, particularly in light of growing international restrictions on the importing of waste from developed countries. In fact, the Government of Canada recently announced plans to implement measures to reduce plastic waste, while the B.C. and Ontario governments are consulting the public on this issue.
For many governments taking the initiative to ban plastics, the question of a legal challenge is not a matter of if, but of when and how. This article highlights some of the challenges governments can expect in order to inoculate their laws from such challenges or to better resist them during litigation.
For further information on this issue, contact Denisa Mertiri at email@example.com