Are bag bans legal? Texas Supreme Court will decide

Jan 11, 2018
Robin Schneider with Texas Campaign for the Environment joins other supporters of Laredo’s bag ban ordinance outside the Texas Supreme Court building Thursday. RALPH BARRERA / AMERICAN-STATESMAN

In a case that will determine whether Austin and other cities can continue to prohibit stores from handing out disposable bags, the city of Laredo asked the Texas Supreme Court on Thursday to reinstate a bag ordinance that had been struck down by a lower court.

On one side are environmentalists, wildlife advocates and city officials who say bag bans are essential to managing litter, protecting animals, saving cleanup costs and limiting damage to sewers and drains that get clogged by wind-blown plastic bags.

They are opposed by retailer groups, limited-government advocates and the Texas attorney general who argue that the bans violate state law, hurt businesses and create a patchwork of rules that vary across the state.

The two sides clashed Thursday during oral arguments before the Texas Supreme Court, which must determine whether the Texas Solid Waste Disposal Act applies to disposable bags when it prohibits cities from banning or taxing “containers” and “packages” as a way to manage trash.

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Speaking on Laredo’s behalf, Austin lawyer Dale Wainwright, a former justice on the Texas Supreme Court, argued that the state law regulates solid-waste management — trash, rubbish and refuse — while Laredo’s ordinance applies to bags given out at the point of sale, when “they are not trash, they are not garbage.”

Opponents take an improperly expansive view of what is solid waste, Wainwright said, adding that cities can and should be allowed to regulate items that later become trash.

Laredo retailers were handing out about 120 million disposable bags a year, forcing the city to spend $340,000 annually to pick them up as litter and remove them from sewer lines that sometimes clogged, exacerbating flooding, he said.

“The ordinance is a reasonable response to a huge problem with the city,” Wainwright told the court.

He also argued that the state law on solid waste disposal was ambiguous, requiring a tortured reading to consider disposable bags as a container or package.

Arguing for the Laredo Merchants Association, which sued to overturn the bag ban, Dallas lawyer Richard Phillips Jr. said Laredo’s bag ban was an improper foray into the management of solid waste that is not allowed under state law.

Although the Solid Waste Disposal Act strove to reduce the amount of waste heading toward landfills, the law put one prohibition on cities — it cannot do so by regulating bags and other containers, he said.

“The Legislature said one way you can’t do it is by banning the use or sale of containers or packages. They didn’t want that to be a tool for cities to use,” Phillips said.

Laredo and other cities, he said, are trying to get around the prohibition by saying their ordinances are intended to control the “source” of pollution and trash. “That’s still solid-waste management” that is banned under state law, Phillips told the court.

Texas Attorney General Ken Paxton submitted a brief in opposition to bag bans, and Solicitor General Scott Keller, Paxton’s chief appellate lawyer, was given five minutes of argument time in court Thursday.

Cities, Keller said, cannot override limits established by the Legislature, and state law clearly pre-empts local ordinances that seek to manage solid waste by regulating bags and other containers.

“Cities like Laredo are trying to pretend they can avoid pre-emption if they use magic words to simply assert their bans are for other purposes beyond solid-waste management, such as protecting the environment and wildlife. That cannot be correct,” he said.

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“The city has conceded here that reducing litter, which is solid-waste management, is the primary purpose of this law,” Keller said.

Wainwright disagreed that the state law, which limits regulating packaging and containers, clearly applies to bag bans.

The Legislature typically takes great care to be specific when acting to pre-empt local ordinances, he said.

“In fact, bills were proposed in the last three sessions that said you cannot prohibit, essentially, the distribution of a bag at a retail location at the point of sale. Those bills failed,” he said. “If the Legislature wanted to preclude this ordinance, it knows how to with unmistakable clarity, which is required, and it did not.”

Court records show about a dozen Texas cities have ordinances regulating disposable bags, including Austin and Sunset Valley. Advocates said several other cities were considering similar rules but backed off while the Supreme Court considers their legality.

The Supreme Court has no deadline to issue its ruling, but a decision is expected by late June or early July.

Justice Jimmy Blacklock, who joined the court on Jan. 2 after stints in the governor’s office and attorney general’s office, is not participating in the case.