High Court Reviews City's Plastic Bag Ban

The City of Manhattan Beach mounted its final defense of an attempted plastic bag ban before the state Supreme Court in San Francisco on Wednesday.

“I thought our attorneys did an excellent job,” City Manager Dave Carmany said Monday. “I was also impressed by the number and variety of people in the courtroom, about 25 organizations in total, on behalf of our side.”

The city passed an ordinance in July 2008 prohibiting use of the bags, but a group calling itself the Save the Plastic Bag Coalition filed suit and had the ban suspended seven months later in Los Angeles County Superior Court. The coalition—made up of plastic bag manufacturers and retailers and led by San Francisco attorney Stephen Joseph—said the city hadn't conducted a state-mandated environmental impact report exploring the potential unintended consequences of the ban, namely an increase in paper bag use.

The city lost an appeal last January, which prompted former City Attorney Robert Wadden to petition the California Supreme Court for a review of the case.

The court three months later on April 22, 2010—Earth Day.

Last week’s hearing centered around two issues: whether the coalition has standing to challenge a local ordinance banning the use of plastic bags and whether the trial court erred in ruling the ordinance invalid for the failure to prepare an environmental impact report.

Arguing on behalf of the City of Manhattan Beach were attorneys Christian Marsh—who is also counsel for the League of California Cities—and James Moose, an environmental law expert from Sacramento. Mayor Richard Montgomery, Interim City Attorney Lee Dolley and City Manager Dave Carmany also attended the hearing, along with representatives of state and local nonprofit groups such as Californians Against Waste and Heal the Bay.

Though currently based in San Francisco, Marsh is a former Manhattan Beach resident and Mira Costa alumnus whose first paying job was at the Roundhouse on the pier. “My second job was at Ralph’s," he said, "bagging groceries and constantly asking the question: Paper or plastic?”

“And now here I am,” he added, “representing the city and fighting plastic bags.”

Each side was given 30 minutes to present its case, though the majority of the seven justices’ questioning was reserved for the plastic bag coalition’s attorney.

Marsh said the court focused mainly on the issue of standing, which can be established in one of two ways. A plaintiff must show that it is “beneficially interested” or that it meets the “public interest” exception to the beneficial interest requirement.

“[The coalition’s attorney] seemed to concede that he had no standing on the beneficial interest test,” Carmany told Patch. “He also failed to show that he had a legitimate public interest.”

Carmany said that Joseph dismissed the city’s own 2008 environmental study of a proposed ban, labeling it “whitewash” during his prepared remarks.

“I don’t know if that will be an effective strategy for him,” Carmany said.

When reached Monday, Joseph told Patch his group would wait until after the court announced its decision before commenting. The court has 90 days from the hearing to render its verdict.

“I don’t want to jinx my own luck,” said Marsh, “but my sense was that [the justices] were leaning in our favor. They wouldn’t have taken the case if they didn’t have questions about its handling [in the lower courts].

Nevertheless, at least one of the justices expressed reservations about the impact a ban would have on consumers’ personal freedom. Justice Carol Corrigan seemed “genuinely concerned” that the court was being asked to impose rigid rules on public habits, Carmany said.

Seeming to share that view, the California State Senate last summer that sought to do away with single-use plastic bags statewide.

The city only needs a favorable ruling on either of the two issues in question to be handed a victory. The plastic bag coalition, on the other hand, must come through on both issues.

“As someone who does a lot of CEQA [California Environmental Quality Act] cases, it’ll be interesting to see what the court says,” said Marsh. “Because the courts have lowered the ‘fair argument’ standard to the point where a lot of cities and counties are having to prepare full-blown environmental impact reports at enormous expense and time, even though it’s unwarranted.”

Under CEQA, if a fair argument can be raised on the basis of "substantial evidence" in the record that a project may have a significant adverse environmental impact—even if evidence also exists to the contrary—then an environmental impact report is required.

“It’d be nice,” Marsh said, “if this case restored a little sanity in that realm.”