The future of plastic bag bans in Texas looks flimsy, with the Texas Supreme Court hearing oral arguments in the case of Laredo Merchants Association v. The City of Laredo last week.
The Court agreed to take the case in September 2017 after a ruling by the state’s Fourth Court of Appeals overturning the ban was handed down in August 2016.
At controversy is Laredo’s city-wide ban on single-use plastic bags. The merchants contend that the municipal ban is illegal because existing state law regulating solid waste disposal pre-empts it. Bans also currently exist in Fort Stockton and Port Aransas.
That state law, Texas Health and Safety Code Section 361.0961, states that local governments may not “prohibit, or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law.”
Arguments over whether the statute applies to Laredo’s bag ban have focused on the specific language of the law, namely definitions for “container or package” and “solid waste management.”
In 2014, then-Attorney General Greg Abbott issued Opinion GA-1078, wherein he stated that “a single-use plastic bag is likely a container” under the state law, but that “whether a city adopted an ordinance for solid waste management purposes will require a factual inquiry into the intent of the governmental body,” and could not therefore “determine whether any specific ordinance is prohibited by section 361.0961.”
In 2015, two lawmakers filed bills to make clear that unduly restrictive regulations such as bag bans would be preempted under state law. Those identical bills by State Rep. Matt Rinaldi (R–Irving) and State Sen. Bob Hall (R–Edgewood) would have amended Texas Business & Commerce Code as follows:
Sec. 205.002. REGULATIONS INVALID.
An ordinance or regulation adopted by a municipality purporting to restrict or prohibit a business from, require a business to charge a customer for, or tax or impose penalties on a business for providing to a customer at the point of sale a bag or other container made from any material is invalid and has no effect.
Hall filed similar legislation again in 2017.
Prior to the appeals court ruling, the two joined a group of three state senators and 17 state representatives in filing an amicus brief in support of overturning the ban.
In the brief the amici argue both that such plastic bags are “packages or containers” and that “Laredo’s stated environmental and property protection goals would presumably be realized through the management of solid waste composed of discarded plastic bags.” The legislators also urged the court to interpret legislative intent at the time of the state law’s passage in their favor, indicating that the preemption aspect is widely understood and accepted by current legislators.
Another amicus brief filed by the Texas Public Policy Foundation takes a different approach, relying primarily on the limitations of local control.
Political subdivisions of States—counties, cities, or whatever—never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the state to assist in the carrying out of state governmental functions. (Bennett v. Brown Cnty. Water Imp. Dist. No. 1)
The brief explored the boundaries of local control further, this time citing the observations of James Madison, father of the U.S. Constitution:
The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State. – Federalist No. 10
Current Attorney General for the state, Ken Paxton, later filed his own amicus brief in support of the merchants. In his brief, like the legislators, Paxton argues that the ban could be for no stated purpose other than solid waste management, and that a city attempting to circumvent this by evading the “magic words” of “solid waste” should not prevail.
Apart from arguments over state law preemption and local control, bag bans simply make little sense. Despite widespread misconceptions, plastic bags are the most environmentally friendly option for carrying groceries. They’re 100-percent recyclable and are less resource intensive than alternatives like paper and reusable bags, the latter of which increase exposure to harmful bacteria.
A 2011 United Kingdom Environment Agency study found that the average shopper would have to reuse the same reusable bag an average of 314 times before its environmental impact dipped below that of single-use plastic bags. Further studies demonstrate that plastic bags comprise the smallest percentage of trash found in landfills. In contrast, other refuse, like cigarette butts, cups, cans, and wrappers constitute about 95 percent.
The balance between the aforementioned interests of the state and the benefits of local governance is a difficult one to strike. Local control has many benefits. As Rinaldi suggests, while one-size-fits-all solutions don’t always work at the local level, state leaders must actively consider such concerns against others like the difficulty for businesses trying to comply with a statewide patchwork of regulations and whether a liberty interest is implicated.
Lardeo’s bag ban is a sterling example of local overreach, and the Texas Supreme Court ought to uphold the Fourth Circuit’s striking down of the ordinance. However, the court has discretion over when to issue a verdict, so the ban could be held in limbo for months, if not years.