Bag-Related Legislation Comes out of Sacramento
On Wednesday, September 19, 2012, California Governor Jerry Brown signed Senate Bill 1219 (Wolk) into law, extending the in-store recycling program for single-use plastic bags. Unlike the former version of this bill AB 2449 (2006), there is no local preemption that would prohibit a city from charging for plastic bags.
The operative part of Senator Lois Wolk's bill would extend the existing at-store recycling program that requires stores to provide to customers the opportunity to return clean plastic carryout bags to that store until January 1, 2020. The part of the former law that prohibits a city, county, or other local public agency from taking specified regulatory actions (namely requiring a charge on would-be free plastic carryout bags) will be repealed under SB 1219.
Sacramento's lift of local preemption on plastic bag charges will allow municipalities more flexibility in the way they would like to regulate single-use bags. With the repeal of AB 2449 preemption language, cities will be be allowed to require fees or charges on single-use plastic bags in California, expanding the variations of local ordinances that they can enact (e.g. D.C.'s highly effective 5-cent fee on all bags).
Unfortunately, there is still active litigation to monitor on this issue. Namely, the County of Los Angeles has been sued by Hilex Poly Co. (a plastic bag manufacturer) over their local ordinance because it requires a charge for paper bags, which the plastics industry claims runs afoul of Prop 26. However, Prop 26 was enacted to regulate how and when municipalities can exact taxes, but in this case, the County is merely requiring that a store charge the worth of the paper bag it hands out instead of giving them away. The County was successful in defending their ordinance at the trial court level, but the case is now being briefed at the appellate level.
It will be interesting to watch the County of Los Angeles suit since this litigation may be used as a "scare tactic" to discourage cities from enacting fees. The plastics industry (in some variation or other, usually the "Save the Plastic Bag Coalition") has sued no less than ten cities and counties in California, largely to no avail.