Infrastructure & Environment

Ruling a Blow to Plastic Bag Bans and Local Control in Texas

by | August 18, 2016

By Jim Malewitz

A state appeals court has struck down a plastic bag ban in Laredo in a high-profile fight over local control that could ultimately impact similar laws in other Texas cities.

The Fourth Court of Appeals on Wednesday sided with merchants and free-market groups who argued that Laredo’s ban on single-use bags is illegal because it is pre-empted by state law regulating solid waste disposal.

The 2-1 ruling overturned a lower court’s decision, the latest setback for environmentalists and advocates of local control in Texas.

Laredo, which estimates it once went through some 120 million plastic bags each year, is among several Texas cities — including Austin, Fort Stockton and Port Aransas — that have sought to regulate them to reduce waste.

The city argued that its ban was designed to beautify the city and reduce clogs in storm drains, not to manage solid waste as barred by the state law.

The lawsuit, filed by the Laredo Merchants Association, was the first challenge to such a ban to be heard in court. And it triggered briefs from 20 Texas lawmakers, a prominent free-market group and the Texas Municipal League — who squabbled over cities’ power to regulate commerce.

Wednesday’s ruling only affects Laredo’s ordinance for now, but it gives legal momentum to bag ban opponents elsewhere.

It is not clear whether Laredo will appeal. City officials did not immediately respond to requests for comment.

Bennett Sandlin, executive director of the Texas Municipal League, said he disagreed with the ruling and that Texas cities should have the power to address their individual problems and needs when it comes to controlling litter.

“There’s 1,200 cities in Texas, and there’s only seven to eight of them that have banned plastic bags. And they’ve all done it for good reasons,” he said.

Fort Stockton, for example, did so to protect cattle, which were ingesting bags that wafted into feed troughs, he said.

The Texas Public Policy Foundation, a conservative think tank, cheered Wednesday’s ruling.

“With the court having clearly spoken, it is time for all municipalities that continue to maintain a similar ‘bag-ban’ ordinance to respect the rule of law and withdraw this illegal regulation,” Robert Henneke, director of the foundation’s legal center, said in a statement.

The state law in question is a small piece of Texas' Health and Safety Code. Local governments, it says, can’t adopt a regulation to “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.”

Laredo contended that its bag ban’s purpose — “prevention of litter” — did not fall within the “management purposes” barred under the law.

The appeals court disagreed.

“The Ordinance does exactly what the Act intends to prevent — regulate the sale or use of plastic bags for solid waste management purposes,” Justice Marialyn Barnard wrote for the majority.

The Texas Tribune  |  The Texas Tribune
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