Before Choosing Paper Or Plastic, You Need Environmental Review

Environmental review, as one California municipality discovered, is a double-edged sword, even if the action the city undertakes is supposedly to protect the environment.

The opinion of the California Court of Appeal (Second District) in Save the Plastic Bag Coalition v. City of Manahattan Beach, No. B215788 (Jan. 27, 2010) isn't all that earth-shattering in its holding: a city must undertake environmental review under CEQA when it passes an ordinance when there is substantial evidence supporting a fair argument that a project may have significant effect on the environment.

The facts of the case are what made this case interesting and worthy of notice, even though its subject matter is slightly off-topic for this blog. And, we must admit, the court's holding resulted in a moment of frisson -- a city ordinance banning plastic bags adopted for the avowed purpose of saving the environment was invalidated because the city did not look at whether the resulting increased use of paper bags would have an environmental impact.

In order to protect the marine environment, the City of Manhattan Beach, California adopted an ordinance prohibiting the use of plastic bags by certain retailers, including grocery stores. The city issued a negative declaration:

On the basis of its initial study, the city found the plastic bag distribution ban could not have a significant effect on the environment. The city acknowledged the ordinance may result in greater paper bag use, which could have negative environmental effects including increased: power plant, paper mill and recycling plant emissions; traffic involved in shipping paper bags to retail establishments; and emissions from trucks carrying heavier, bulkier paper bags. The initial study also found reducing the use of plastic bags in the city would have only a modest positive impact on the migration of plastic refuse into the ocean. The initial study concluded, however, that there would be no environmental impact as to aesthetics, agriculture, biological and cultural resources, geology and soils, hazards and hazardous materials, hydrology and water quality, land use and planning, mineral resources, noise, population and housing, fire and police protection, schools and parks, recreation, and utilities and service systems other than landfills.

Slip op. at 5.

A group of plastic bag manufacturers named, awkwardly enough, "Save the Plastic Bag Coalition" objected (I suppose that name is better than, say, "Save Our Bags" (SOB's)). SPBC sought a writ of mandate which the trial court granted, and it vacated the ordinance and prohibited the city from reenacting it until the city produced an environmental impact report. The trial court considered four reports (see slip op. at 7 - 15 for a summary of the reports) which analyze the effects of the use of plastic and paper bags.

A 2-1 majority of the Court of Appeal affirmed, holding that California's preference for resolving doubts about environmental impacts should be resolved in favor of disclosure, and that the city must undertake an environmental review:

We conclude it can be fairly argued based on substantial evidence in light of the whole record that the plastic bag distribution ban may have a significant effect on the environment. The four reports cited by the parties and summarized above—the Scottish, Boustead, ULS and Franklin reports—support the conclusions: a plastic bag ban is likely to lead to increased use of paper as well as reusable bags; paper bags have greater negative environmental effects as compared to plastic bags; and the negative environmental effects include greater nonrenewable energy and water consumption, greenhouse gas emissions, solid waste production, and acid rain.

Slip op. at 25 (emphasis added). The majority paid no neverminds to the city's claim that its good intentions insulated it from CEQA's study and disclose requirement: "Nor can the California Environmental Quality Act's requirements be ignored when, as is often the case, the party seeking compliance has some personally beneficial motive in doing so." Id. at 26. 

Justice Mosk dissented, arguing that requiring a small municipality to undertake detailed environmental review of a measure designed to protect the environment was "an absurdity." Dissent at 1. He concluded:

I could go on, but the proper result in this case seems self-evident. In this day of limits, we must interpret statutes reasonably so as not to require the unnecessary expenditure of public monies for no corresponding benefit. I would reverse the judgment.

Dissent at 8.

I know it when I see it, Justice Mosk?