Green Retailing Memo: Judge Slaps Injunction on Oakland, California Single-Use Plastic Carrier Bag Ban; Ruling Could Have Implications Elsewhere

Alameda County (where the city of Oakland is located) Superior Court Judge Frank Roesch has issued a ruling placing an injunction on the single-use plastic carrier bag ban the Oakland City Council passed into law last year.

Oakland's plastic grocery bag law would ban food and grocery retailers with stores that do over $1 million a year in sales from offering the single-use plastic carrier bags in their stores. The grocers would still be able to offer paper grocery sacks to shoppers for no charge however.

A single-use plastic carrier bag trade association called The Coalition to Support Plastic Bag Recycling sued the city of Oakland last summer after the bag ban was passed by the lawmakers.

The trade group argued in the lawsuit that single-use paper grocery bags take more energy to produce and use more landfill space when disposed of than single-use plastic carrier bags. They further argued the city of Oakland should have conducted an environmental impact review (EIR) comparing the energy inputs required to produce the paper grocery sacks and the plastic bags, as well as studying the landfill disposal issue as part of that EIR before passing the single-use plastic carrier bag ban law.

California has a statewide law which requires supermarkets to put single-use plastic carrier bag recycling bins in their stores and have the bags picked up regularly in-store by a certified recycling company, as well as requiring the retailers to sell reusable shopping bags in those stores.

Although the single-use plastic carrier bag ban law was past last year, Oakland has yet to implement it because of the lawsuit. Judge Roesch's ruling states: "The court...finds that substantial evidence in the record supports at least a fair argument that single-use paper bags are more damaging than single-use plastic bags."

John Russo, Oakland's City Attorney, says he will ask the city council this week if it wants to contest the court's ruling or do an environmental review of the ban, which he says will cost the city about $100,000 to conduct.

In response to Judge Roesch's ruling in favor of the Coalition to Support Plastic Bag Recycling's lawsuit, Keith Cristman, the senior director of the American Chemistry Council's plastics division which opposes the Oakland law, said in a statement that "banning plastic bags would dramatically increase energy use, double greenhouse gas emissions and increase waste. Recycling plastic bags is the right approach and makes plastic bags the environmentally responsible choice."

Christman is basing his arguments above on the coalition's argument that banning the single-use plastic carrier bags in the Oakland food and grocery stores with $1 million or more in annual sales would lead to a significant increase in the use of paper grocery bags.

There is some evidence in nearby San Francisco for the paper bag increase in use argument. That city passed a similar plastic bag ban before Oakland passed its law last year. The San Francisco law, which was implemented last year, banned grocery chains and independents that operate stores over 10,000 square feet in size from offering single-use plastic carrier bags in those stores. The law allows the retailers' to continue to offer free paper grocery bags to shoppers.

Numerous grocers in San Francisco, such as Safeway Stores, Inc., regional chain Mollie Stone's and others, have reported paper bag use in their stores increasing dramatically since the plastic grocery bag ban law went into effect last year.

However, they also have reported a significant increase in shoppers bringing their own reusable shopping bags to the stores, along with an increase in the number of reusable bags their stores are selling since the plastic grocery bag ban went into effect.

Further, the City of San Francisco argues, and many agree, that because the city's system of curbside recycling for paper grocery bags is so simple and is available in every neighborhood in the city, over 70% of those single-use paper grocery bags are being recycled, unlike plastic grocery bags which they say end-up either in the city's landfill or littered on the streets.

Many food and grocery retailers in San Francisco also give shoppers a five cent credit for every paper grocery bag they return to the stores. Whole Foods Market stores in the city give customers a 10 cent per-bag credit for each returned paper grocery sack.

The Coalition to Support Plastic Bag Recycling didn't oppose San Francisco's ban in court for some reason. Rather, it chose to file a lawsuit against the city of Oakland's plastic bag ban law instead. The two city's laws are nearly identical expect San Francisco's bases the ban on the square footage of a grocery store (the 10,000 square feet size), while Oakland's law is based on annual store sales (the $1 million number.)

If the city of Oakland doesn't appeal the court's ruling and the injunction stays, that means the city's single-use plastic carrier bag law can't be implemented. As such, it will be interesting to see what decision the city council gives City Attorney John Russo this week.

If the coalition does win the case on appeal (if Oakland appeals), it could set a nationwide precedent regarding municipal plastic bag bans in the U.S.

We've located at least 30 cities in the U.S. that currently have proposals to ban the use of the single-use plastic carrier bags in supermarkets in their city's and towns. It's likely if the Oakland injunction holds, the coalition and other industry groups will use it as the basis of fighting similar proposed legislation in cities and counties throughout the U.S.

If the Oakland City Council decides to conduct the environmental review, the second option Russo has presented to the legislative body this week, it can use the results (if favorable to the bag ban law) in its appeal.

Natural~Specialty Foods Memo will continue to follow this story for our readers.

Grocery Retailing & Legislation Memo: AB 2058, the Plastic Bag-Reduction and Potential 15 Cent Bag-Fee Bill Passes California Assembly Committee Vote

One of the two single-use plastic carrier bag bills, AB 2058 debated and voted on by the California State Assembly Natural Resource Committee last Tuesday, passed in the committee with five -to- three member-vote and now will go to the Assembly Appropriations Committee for debate and possible markup as a bill in which the full Assembly would then vote on.

If eventually passed, AB 2058 would require all supermarket and drug retailers in California to charge consumers 15 cents per single-use plastic carrier bag requested unless the state's retailers meet a series of plastic bag reduction benchmarks or goals. These benchmarks require the retailers to meet a 35% reduction rate in plastic bag use by July 2011, followed by a 70% reduction by July 2013. If either goal isn't met within those time frames, the 15 cent per single-use plastic carrier bag customer fee would go into effect.

The legislation's author is Assemblyman Lloyd Levine from Southern California. Levine was the author of legislation which was enacted last July in California requiring supermarket and drug retailers operating larger stores to place single-use plastic carrier bag recycling bins in those stores. The legislation also made mandatory the offering for sale of reusable shopping bags in the stores.

A second bill, which the Natural Resource Committee debated but didn't put to a vote on Tuesday would levy a 25 cent per single-use plastic carrier bag fee on shoppers who request it at larger supermarkets and drug stores in California. There are no reduction goals in that bill. Rather the 25 cent bag-fee would be mandatory.

That bill remains in the committee where it either will be further debated soon or left sitting while AB 2058 goes through discussion, debate and an eventual vote in the Assembly Appropriations Committee. [Read more about that bill and related issues here.]

All proposed legislative bills in California, and most other states in the U.S. as well as at the federal government level, go to the Appropriations Committee after being passed by a respective committee like Natural Resources. It's the Appropriations Committee that's charged with appropriating any and all monies for legislation. Without the committee doing so, a bill will die in committee.

The next step for the plastic bag reduction/15 cent bag-fee bill, AB 2058, is for it to get what's called its first policy committee hearing in the Appropriations Committee. That's expected to happen soon.

A number of groups are supporting AB 2058 and are launching a public relations and grass roots campaign designed to get the Appropriation's Committee to support and vote the bill out to the full California State Assembly for a vote.

Leading the charge is a non-profit environmental group called Californian's Against Waste. Other signed-on supporters include the City and County of San Francisco, The Easy Bay Area Municipal Utilities District, the Marin County Board of Supervisors, the Northern California Recycling Association, and the Sonoma County Waste Management Agency.

Since the bill just passed the Natural Resource Committee, the California Grocers Association which represents California's chain and independent food and grocery retailers, hasn't taken a position on AB 2058 as of yet.

Additionally, because the bill just passed in the committee, it's still a bit early for the Golden State's supermarket retailers to start voicing either opposition or support for AB 2058.

However, as we reported in this piece last week, it's far from a sure thing that all or even the majority of the state's grocery chains and independents will oppose the law. One reason this is the case is that the grocers' would likely prefer AB 2058 to the 25 cent per plastic bag legislation which remains in the Natural Resource Committee and can be voted on any time the chairman of the committee puts the legislation up for a committee vote.

Another reason is that the grocers are well aware of the numerous proposed outright single-use plastic carrier bag-bans being debated by local governments throughout the state. Their are currently at least 30 California cities proposing such bans. San Francisco already has a plastic bag ban as law and Oakland has passed a similar law which is currently in court being fought by a plastic carrier bag trade association.

The Bay Area city of Palo Alto is set to enact a single-use plastic carrier bag fee law for that city later this week. Other California cities not considering bag-bans are considering bag-fee laws like Palo Alto's.

Therefore, the California Grocers Association (CGA) may decide to support AB 2058. The group's decision as to whether to support or oppose the bill will be based on what the majority of its chain and independent grocer-members decide.

CGA supported the previous legislation by Lloyd Levine, AB 2058's author, which requires the grocers in the state to place the plastic grocery bag recycling bins in their stores and sell the reusable shopping bags, the latter which most of the grocers already did before the law was passed and enacted last year.

However, the benchmarks--35% by 2011 and 70% by 2013--might be a little steep in the CGA's--and grocers'--opinion. Therefore, we believe the grocers might support AB 2058 if they can get two things changed: a reduction in the percentages the grocers' would be required to achieve, along with an extension of the 2011 and 2013 dates perhaps.

If some sort of compromise can be achieved in these two areas--for example, hypothetically speaking, say a 25% reduction by 2011 and a 60% reduction by 2013--we believe the grocer's association and the majority of the states supermarket chains and independents might support an amended AB 2058 bill. That's just our analysis though, and we will have to wait and see the result as the bill progresses through the Appropriations Committee.

There remains a long road for AB 2058 to become law. First, it has to pass the Appropriations Committee. From there it would then go to the full California State Assembly for an up or down vote by the members.

Should AB 2058 pass the full assembly, it then has to go to the California State Senate and begin the committee debate and vote process in that body. If the bill--which gets another name and number in the state senate (SB #) passes the senate committees' and then the full body, it still must be signed by the Governor in order to become law. The Governor has the power to kill the bill with a mere veto.

AB 2058 also can be amended during this entire journey through first the California State Assembly and then the state senate. Depending on the severity and economic backing of the opposition to the plastic bag-reduction and fee bill, AB 2058 could end up very much different than the original bill. On the other hand, if the opposition isn't stiff and well-funded, the bill could eventually emerge with only minor changes.

These compromises go all the way to the end, which includes any changes the Governor might want to make in order to sign a bill such as AB 2058.

Like the old saying goes: Laws are like sausages, it's better not seeing them being made. However, just like in sausage-making, the end result of any legislation that passes can either leave a fairly good taste in the majority of citizens' mouths, or just taste plain old horrible to everybody. Such is the art and process of lawmaking.