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Appeals Court Rules for LA County Bag Ban and Against Plastics Industry

February 22 2013 | Legal, Rise Above Plastics, Bag Bans,
by Angela Howe

On February 21, 2013, the California Court of Appeal for the Second Appellate District affirmed the lower court judgment in favor of Los Angeles County in defending their municipal bag ban ordinance from an attack brought by the plastics industry, including Hilex Poly Co., in Schmeer et al v. County of Los Angeles.  Surfrider Foundation was proud to support the County's argument with a "friend of the court" brief in this appellate case.

The actual Appellate Court opinion focuses specifically on the Court’s discussion about whether the charge for paper bags is a fee or tax.  The Court concluded that a charge that goes to a private entity (e.g. the store) can never be a “tax” under Proposition 26, even if the charge is compelled by the government.  A "tax" is a fee that is recouped by the government and used for a government program.  The Court offers a full discussion of the history of the meaning of “tax” under California law.

Surfrider Foundation filed an "amicus" or "friend of the court" brief on December 13, 2012, along with 5 Gyres Institute, Environment California, Heal the Bay, and Seventh Generation Advisors.  The Frank G. Wells Environmental Law Clinic at University of California Los Angeles Law School took the lead in authoring this important document.  Our brief argued that the bag ban ordinance was well within the County's local police power authority.  The original impetus for the County ordinance was based on public outcry for the environmental regulation due to the evidenced degradation of natural resources caused by single-use bags.  The brief also points out the negative consequences  of single-use bag litter, including the negative economic impacts and harm to coastal recreation and tourism industries.

The environmental groups submitting the brief pointed out that unfortunately, voluntary single-use bag reduction measures and recycling policies are proven to be ineffective.  Based on a report from the California Department of Resources, Recycling & Recovery, these programs have not worked to stem the stream of litter and the increased usage of single-use bags.  The amicus brief goes on to point out that bag bans and purchase requirements are proven, effective policy tools.  For instance, in Ireland in 2002, a 0.15 euro charge was placed on single-use bags and usage went down 94%.  A San Jose litter survey reported that there was an 89% reduction in plastic bag stormdrain litter after an ordinance similar to LA County's was put into place.

Surfrider Foundation offers congratulations to Los Angeles County Board of Supervisors, Staff and County Counsel for, again, fending off this nonsensical litigation from the plastic bag industry.

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