South Carolina plastic bag manufacturer Hilex Poly has filed a lawsuit against Los Angeles County claiming they violated Proposition 26 when requiring a retailer retained 10-cent charge on paper bags.

Proposition 26 was passed by the voters in early November, 2010, and requires local governments to place a tax increases before the voters for a 2/3 vote for passage. In late November, 2010, Los Angeles County passed their bag ordinance which bans the use of plastic carryout bags and requires a 10-cent charge on paper carryout bags.

The lawsuit by Hilex Poly essentially claims the retailer retained paper bag charge is technically a “tax” under Prop. 26. Los Angeles County attorneys, along with attorneys from several other jurisdictions, declared Prop. 26 did not apply to the charge before the Board of Supervisors voted for the ordinance.

If Hilex Poly wins this case the result could mean local governments could no longer require a retailer-retained charge on a bag without bringing the question to the voters.

Many thought a Prop. 26 lawsuit of this type would be filed before the ordinance went into effect this past July. The Los Angeles County ordinance along with several other ordinances have been in effect for months now.

It is worth noting this lawsuit comes on the heels of the plastic bag industry’s loss in the Manhattan Beach case where they tried to require jurisdictions perform expensive environmental reports before passing an ordinance.

The filing of this lawsuit appears to have no immediate effect on the implementation of the Los Angeles County ordinance. Los Angeles County will notify stores if there is a change in legal requirements. Companies with affected stores are urged to confirm with Los Angeles County before making any changes.

PR Newswire article is available here.

In early June we posted about local redistricting and its pitfalls and opportunities. While many cities and counties have completed the process, Los Angeles County is still in the thick of it.

The current push by Supervisor Gloria Molina is to move the lines to create a second Latino-majority district.

Molina originally suggested drastic changes to Supervisor Don Knabe’s district to increase its Latino population. This could present a problem for Knabe as he seeks his second and final term on the Board.

Molina’s second plan drastically alters Supervisor Zev Yaroslavsky’s district since he is termed out and no longer able to seek election to the Board. Yarosalvsky’s response – “a baldfaced gerrymander that is completely unnecessary.”

Leaving the issue of increased Latino representation aside, this maneuvering raises an interesting question. When drawing districts recognizing communities of interest is a requirement. But, is designing a district to elect a specific type of candidate appropriate?

Read the Los Angeles Times articles below to learn more.

Bid for more Latinos on L.A. County board sets up fight

Second plan for Latino-majority supervisor’s district offered

Yaroslavsky opposes 2nd Latino district

Anyone who spends time in local government quickly learns the term “agenda management.” Formally, it refers to the preparation and scheduling of agenda items so a meeting does not become overloaded and can be completed in time. Informally, it is a powerful political tool.

Nearly every agenda item requires department staff to write an ordinance and staff report, then it goes to the staff attorney for review, then it goes to the City Manager or County Executive for approval, and then it goes to the clerk to schedule for an upcoming meeting. With so many stops the opportunity to fast track or round file an issue is infinite.

I have seen this process completed in as little as three days and know of several issues which disappeared (intentionally) into the administrative morass. Usually it takes four to six weeks to move from beginning to agenda.

So what happened about four weeks ago that is prompting a discussion of local government agenda management? The Manhattan Beach vs. Save the Plastic Bag Coalition court decision on carryout bag regulation.

The decision by the California Supreme Court provides clarity on how local governments can better navigate CEQA to avoid plastic industry lawsuits. With this clarity elected officials are ready to get moving.

CGA is currently seeing a dramatic uptick in hearings to regulating carryout bags by local governments across the state. It went from a few hearings a month to four or five a week with no end in sight.

Nearly all the hearings have been initial discussions directing staff to start the process of developing ordinances and environmental documents. It will take several months for jurisdictions to complete draft ordinances and CEQA documentation before for a final decision can be made.

As CGA tracks and engages local jurisdictions it will be interesting to see if “Agenda Management” will be used to speed up or slow down the efforts. Based on the enthusiasm we see now, expect to see another wave of bag hearings from the same jurisdictions in about 3 to 6 months — right on time.

The California Supreme Court recently ruled in favor of the City of Manhattan Beach defending their choice to use a Negative Declaration (Neg. Dec.) to pass a plastic bag only ban. A Neg. Dec. is considered the lowest form of environmental review under CEQA.

This ruling came on top of the trial and appellate courts siding with a group of plastic bag manufacturers challenging the city for not performing an Environmental Impact Report (EIR), the most intensive and expensive level of review.

Now environmentalists, the plastic bag industry, local governments, and retailers are left to decipher what this decision means for the future of bag bans. Many hoped the ruling would provide a clear and distinct path to navigate CEQA requirements. Unfortunately, this decision did not provide the desired clarity.

The CA Supreme Court made it clear they believe it was appropriate for Manhattan Beach to perform a Neg. Dec. since it was a small jurisdiction (pop. 35,000) and therefore any environmental impact would be minimal. They also stated “larger governmental bodies” may need to perform an EIR due to the potential for greater environmental impact.

So at what point does a small jurisdiction become a large jurisdiction? Plastic bag industry representatives have already vowed to find out by continuing to demand an EIR be performed for all.

It is important to note the “larger governmental bodies” of San Jose and Los Angeles County (each with a pop. of 1M) both performed an EIR when passing ordinances and did not draw a legal challenge under CEQA.

As jurisdictions, large and small, prepare to pass regulations will they risk becoming the next “test case” by performing a Neg. Dec. or will they continue their pre-decision path of performing an EIR? It is too early to tell.

It looks as if the plastic bag industry reaction to the next jurisdiction passing a bag ordinance will be the decisive act which will provide the clarity the CA Supreme Court decision did not.

A copy of the decision in Save The Plastic Bag Coalition v. Manhattan Beach is available here.

In preparation for the CGA Board of Directors meeting I pulled out a map and calculator to tally the impact of regional efforts to regulate carryout bags in Northern California. I surprised myself when I saw the final count – 4.8 million people!

As a point of reference 4.8 million people is larger than the State of Alabama and a bit behind the State of Colorado. (Wow!)

To fully understand this number we need to start by defining what “regional” means. In this case it refers a group of neighboring jurisdictions, jurisdictions partnered through a Joint Power Authority, or all jurisdictions within a county. Basically, it is the practice of separate jurisdictions joining together to regulate carryout bags in a similar way.

So why choose regional regulation? The answer is quite simple – time and money. By engaging a regional process the cities and counties involved share the cost and expense of environmental review, create consistency across borders to avoid economic disadvantages, and achieve compliance with regional storm water mandates.

It is interesting to note at the beginning of this year less than 2 million people were being impacted by regional efforts to regulate bags. In the last six months regional efforts have begun in Alameda County, Marin County, Monterey County, San Mateo County, Santa Cruz County, Sonoma County, and Contra Costa County. This list represents the majority of the Northern California coastline and San Francisco Bay Area.

Regional regulation is arguably preferred for the grocery industry. It does mean larger areas under regulation, but also results in greater consistency between jurisdictions. In Alameda County this means one ordinance passed on one vote for all 15 jurisdictions compared with 15 ordinances and 15 votes if each jurisdiction acted alone.

As the legal questions gain clarity and environmental review is completed expect these regions to begin passing ordinances. Many are on target to take votes before the end of 2011. We also expect more jurisdictions to enter into the mix as the year continues.

Forget Colorado. Soon we will be bumping up against Minnesota!

Wednesday, July 13, 2011
10:00 AM to 11:00 AM (PST).

The City of San José was the first Northern California jurisdiction to pass a comprehensive carryout bag ordinance. This ordinance bans the use of plastic carryout bags and requires a retailer retained charge on paper carryout bags, among other requirements. The ordinance will go into effect on January 1, 2012.

In order to assist grocery stores in San Jose comply, the California Grocers Association in coordination with CGA Educational Foundation has arranged for a free webinar. City of San Jose staff will discuss requirements of the ordinance and answer questions directly related to implementation of the ordinance. This webinar will be useful for those involved with operations, compliance, purchasing, or public affairs.

In order to tailor the webinar to your needs please submit specific areas you would like to see recieve additonal focus or questions you may currently have by email here.

Please click here to register. Space is limited to the first 100 participants so RSVP soon to reserve your spot. Contact Tim James at [email protected] for additional information or questions.

By hosting this Webinar, California Grocers Association (CGA) is providing an opportunity for its members and attendees to obtain general information and interact directly with the regulating agency which may be of interest as your company develops a program for complying with the City of San Jose Bag Ordinance. The Webinar is designed to provide practical and useful information on the subject matter covered. However, CGA is not engaged in rendering legal, accounting or other professional advice or services.

CGA does not review or approve the content of the webinar presented by guest speakers and others, and makes no representations or warranties about the accuracy or legality of any compliance or other recommendations provided during the webinar. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

Today is a big day for the 83 larger grocery stores in unincorporated Los Angeles County and three in Calabasas, who must implement carryout bag ordinances. There will likely be a significant number of questions from customers and the press about the new changes in the law. I will be available all day to take your calls. My office number is 818-841-8640 and my cell number is 818-441-6053.

CGA began hearing from several grocers last week that LA County Public Health and California Dept. of Food and Agriculture inspectors were citing grocers for failing to obtain a permit to cut-and-wrap cheese; a permit that had previously not existed and which was based on an obscure and never enforced section of the codes. CGA’s Sacramento government relations team met with CDFA on Friday and the agency affirmed that it would 1) advise Los Angeles County to cease proactive enforcement of the permit, pending a more detailed analysis of the law; 2) advise the County to notify grocers that they are allowed to continue their cheese cutting-and-wrapping store operations until further notice; 3) CDFA would postpone or cancel all appointments with grocers to explain compliance of the relevant statutes and; 4) meet with CGA in the near term to discuss the issue in greater detail.

Santa Clarita city officials noticed a marked increase in the presence of shopping carts on city streets in recent months and called a meeting with retailers last night to find reasonable solutions to the issue. The city staffers made it clear that their intent was to work with business and were not likely to shove another punitive cart ordinance down retailers throats.

It quickly became apparent that most of the retailers who took the time to attend were already doing their best to keep their carts off the streets with regular cart retrieval service, signs and offering for sale fold-able push carts to customers.
As in many communities, a few retailers apparently do not retrieve any of their carts from city streets, even after the City calls them to report a specific cart location. CGA advised the city to encourage those bad actors to their part without penalizing those grocers who are doing their best to keep carts off the streets.

City enforcement personnel in Pasadena recently tied grocers in a bind by aggressively fining members up to $100 for each cart found off a store’s premises, regardless of efforts to keep carts on store property. After several discussions with staff and council offices, it is obvious that the city has a confrontational attitude towards grocers and intends to continue its zero-tolerance policy towards abandoned carts. Further, the activity is not staff-driven but was actually implemented at Council’s direction. CGA is publishing a letter-to-the-editor in the local paper and continuing to schedule meetings with council members and staff to present the industry position. Even so, there is no easy fix to this crisis and nothing in the pipeline to suggest that the enforcement activity will cease anytime soon. CGA will be scheduling a conference call to coordinate strategy to attack the problem and would like industry participation in an upcoming meeting with City officials. If your company has been impacted by this activity, please call Matthew Dodson at 818-841-8640 to discuss.