Notice: This post is worth reading. There's the possibility of a prize if you do. Read on.
Here's the latest in a case we've been following with mild amusement, if only because the Court of Appeal decision seemed so ironic.
In Save the Plastic Bag Coalition v. City of Manahattan Beach, No. B215788 (Jan. 27, 2010), the Fourth District concluded the city needed to undertake environmental review under CEQA before it could adopt an ordinance banning grocery store plastic bags. The resultant increase in the use of paper bags might cause environmental harm, you see.
Whether you agreed with that conclusion or not, the decision certainly entertained. A putatively "green" measure struck down because it might be bad for the environment? But with a 2-1 panel decision and review granted by the California Supreme Court, it wasn't hard to see the handwriting on the wall.
Yesterday the other shoe dropped, and the Supremes unanimously reversed. In the opinion, the court held that the Save the Plastic Bag Coalition (which the court informs us is an industry group, as if there would be a grassroots organization dedicated to saving plastic grocery bags) had standing, and that "[s]ubstantial evidence and common sense support the city's determination that its ordinance would have no significant environmental effect." Slip op. at 2.
We won't go into great detail -- you can either read the opinion or, better yet, check out the summary of the case on Abbott & Kindermann's Land Use Blog here -- but we will note that the court based its decision in part on the fact that Manhattan Beach isn't a large municipality (40,000 residents, 220 businesses that use the offending plastic bags), so it was a stretch to say that the ban on plastic would likely have an environmental impact because "the increase in paper bag production following a local change from plastic to paper bags can only be described as insubstantial." Slip op. at 22.
But larger jurisdictions? Not so fast:
As the city conceded at oral argument, the analysis would be different for a ban on plastic bags by a larger governmental body, which might precipitate a significant increase in paper bag consumption. In the courts below, plaintiff referred to the cumulative impacts the Manhattan Beach ordinance might have in conjunction with similar laws enacted or contemplated elsewhere, including bans in San Francisco and Santa Monica, and possible bans in Oakland, Los Angeles County, and even statewide. The Court of Appeal did not discuss this issue. In any event, we note that Manhattan Beach is small enough that even the cumulative effects of its ordinance would be negligible.
Id. (citations and footnote omitted). The court concluded "[w]hile some increase in the use of paper bags is foreseeable, and the production and disposal of paper products is generally associated with a variety of negative environmental impacts, no evidence suggests that paper bag use by Manhattan Beach consumers in the wake of a plastic bag ban would contribute to those impacts in any significant way." Slip op. at 23.
It's refreshing to see a court rely on "common sense" in an environmental law ruling, especially one that deals with claims of indirect, geographic, and "cumulative impact." We only wish other courts would do the same.
But never let it be said that we are not on the cutting edge, especially when it comes to environmental matters: as we noted at the beginning of this post, as a reward for reading all the way to the end, and for when the plastic bag ban comes to your local municipality, we are offering up our firm's reuseable, 100%-from-recycled-materials-big-enough-to-carry-two-bags-of-groceries EnviroBag (photo above, and from another angle here) if you drop us an email in the next few days. These blue bags are not your typical cheap recycle bags, but are made of a sturdy woven fiber and have a built-in floor piece. They are quite strong and will hold a ton of stuff (we've even used them to haul firewood). Just so we're not sending these blue bags out into the indefinite future, this offer ends on August 1, 2011. Include in the email your mailing address and we'll post one to you forthwith.
Save the Plastic Bag Coalition v. City of Manhattan Beach, No. S180720 (July 14, 2011)
