A measure passed earlier this year by the San Francisco Board of Supervisors largely banning the use of plastic bags by city retailers is being challenged in a lawsuit claiming that the board violated the California Environmental Quality Control Act by not submitting the ban to a lengthy environmental review before enacting the measure.
In a motion filed earlier this week, Steven Joseph of the Save the Plastic Bag Coalition argued that not only are plastic bags less environmentally hazardous than paper or compostable bags, but the 10-cent fee the measure imposed on the use of paper bags won't actually have an demonstrable impact on their consumption.
"A 10-cent fee is, or may be, far too low to act as an effective incentive to promote the use of reusable bags," wrote Joseph, who first gained notoriety as one of the main proponents of Tiburon's first-in-the-nation ban on trans fats. "No one will carry a reusable bag with them for unplanned impulse buying. Very few people will carry a reusable bag to Macy’s or other department stores to save a dime. Very few people will carry a large reusable bag to purchase one or two small items such as earrings or a watch or a snack from Union Square or Chinatown. Very few tourists will carry reusable bags when they visit Fisherman’s Wharf and tour the city."
A report by the City of San Jose found that at least a 25-cent fee per paper bag is required in order to significantly alter shopper behavior.
San Francisco passed its pioneering ban on the use of non-compostable plastic bags by large grocery stores and chain pharmacies in 2007. The ban was extended to cover most business in the city last month with exceptions for dry cleaning, bulk candy and restaurant 'doggie bags.'
Stores found flouting the ban will be fined $100 for the first violation, $200 for the second and $500 for each subsequent infraction.
The ultimate goal of the measure is to promote the use of reusable shopping bags.
This lawsuit isn't Jospeh's first foray into challenging similar bans in other California cities. Last year, he sued the Southern California city of Manhattan Beach on the grounds that its plastic bag ban was not preceded by an environmental impact report. While that legal maneuver was ultimately unsuccessful, the state Supreme Court indicated in its ruling that municipalities larger than Manhattan Beach would likely have to issue such a report prior to instituting a ban.
"[San Francisco's plastic bag ban] is an end run around the law," Jospeh told the San Francisco Examiner. "We haven’t challenged anyone that’s done an EIR."
For example, Joseph did not sue the city of Los Angeles over its ban because Los Angeles completed an EIR before enacting it.
However, the coalition has brought legal action against a bevvy of Golden State municipalities including Marin County, San Luis Obispo, Santa Cruz, Long Beach, Palo Alto and Oakland.
Completing environmental impact reports, a process that can take years, is often prohibitively costly for many smaller municipalities. "What these suits accomplish is delay the enactment or implementation of bans, in addition to intimidation," said a post on Plasticbaglaws.org, which bills itself as a resource for legislative bodies considering laws limiting the use of plastic bags.
The EIR on plastic bags conducted by the Silicon Valley city of Sunnyvale ended up costing $48,000, which Sunnyvale solid waste program manager Mark Bowers noted to the San Jose Mercury News was significantly lower than expected.
The city of Fairfax managed to avoid a suit over its ban, even though it did not conduct an EIR, because the bucolic Marin County hamlet banned plastic bags though voter initiative instead of legislative action.
The Save the Plastic Bag Coalition asserted standing in its suit against San Francisco by stating that coalition members Crown Poly, Inc. and Grand Packaging, Inc. would be affected negatively by the ban. Both companies are large-scale manufacturers of plastic bags.
This sketch on the IFC sketch comedy series Portlandia is a pretty apt representation of the fight over plastic shopping bags:
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