The California Supreme Court announced it will hear oral arguments May 4 on the Save the Plastic Bag Coalition v. City of Manhattan Beach case. The question before the court is whether a local jurisdiction must perform an Environmental Impact Report (EIR) when regulating carry-out bags. This case is a game-changer since it will decide the speed and ease for passing local ordinances.
In the summer of 2008 Manhattan Beach passed an ordinance banning the use of plastic bags at checkout by all retailers. This effort followed the Oakland ordinance which was dismissed by a court due to lack of CEQA review. Manhattan Beach chose to perform a CEQA review using a Negative Declaration, which essentially states there is no significant environmental impact. Immediately upon passage plastic bag manufacturers under the name “Save the Plastic Bag Coalition” filed suit claiming a full EIR under CEQA must be performed.
The original decision was in favor of the Coalition and prevented enactment by Manhattan Beach until an EIR was performed. Manhattan Beach promptly appealed the decision and was again rejected on the determination that enough environmental impact could exist to warrant full study in the form of an EIR. Manhattan Beach was not satisfied and appealed to the State Supreme Court in early 2010.
EIR’s require extensive analysis of environmental impacts in 23 separate areas which highlight specific impacts of one bag type over another. Plastic manufacturers have claimed the impact of their product in comparison is environmentally preferred. Given this belief they want jurisdictions to perform an EIR to highlight these specific impacts and apply the findings to the policy decision. Los Angeles County and San Jose both performed an EIR and passed ordinances and they were not sued.
It is important to recognize performing an EIR is a long and expensive process. An EIR usually requires $100,000 and 4-6 months to perform at a minimum. In comparison a Negative Declaration adds little additional cost and can be completed in 45-days.
Requiring local governments to perform an EIR is seen by many as creating a financial disincentive to pass ordinances. For the grocery industry this decision will dramatically affect the volume and speed of future ordinance consideration. If an EIR is not required local jurisdictions could pass a bag ordinance in a matter of weeks with little, if any, upfront costs. If required to perform an EIR some local governments may not engage or choose to band together to perform a regional EIR to share costs.
Regardless of the outcome bag ordinances will continue to be pursued by local governments. The unknown is if grocers will experience a flood of ordinances or continue to see a slow trickle.