When a Decision is Not Decisive

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.