Legal, Plastic Pollution, Bag Bans
March 23 2012

Superior Court Upholds Los Angeles County Bag Ban

by Angela Howe

In a Los Angeles Superior Court hearing today, Judge James C. Chalfant upheld the County of Los Angeles ordinance to impose a single-use plastic bag ban with a 10-cent fee on paper bags. This case was brought by Petitioner Hilex Poly Co. LLC, a plastic bag manufacturing company, and several named individuals to challenge the 10-cent charge on paper bags as an illegal tax under California's Prop 218 and Prop 26 that regulate when local governments can impose a tax.

Judge Chalfant declared that the 10-cent price required on paper bags in grocery stores was, in fact, not a tax or fee regulated by the Prop 218 or Prop 26 because 1) the charge is not a general or special tax because it does not raise revenue for the County and 2) even if stores were the agents of the County collecting the charge, it falls within the first exception of Prop 26 because there is a specific benefit conferred upon the payor (namely, a paper bag they purchase).

Judge Chalfant denied the Petitioners' Writ of Mandate ruling:

"An unstated premise of Petitioners' case is that a payment compelled by ordinance can be a tax where the government does not receive any portion of the money.  Petitioners cite no constitutional provision, statute, or case for this rather remarkable proposition.  While it is true that the Constitution does not expressly provide that a local government must receive a levy, charge or exaction in order for it to qualify as a tax, this is likely due to the fact that it is so obvious and unquestioned as to not be open to debate."  

County Counsel also pointed out that it is within the discretion of the stores as to how to use the 10-cent charge for each paper bag, and it is even within their discretion as to whether to offer single-use paper bags for sale at all.

In a surprising effort to make the plastic bag company's argument today, the Hilex Poly Co. attorney argued that there IS a public environmental benefit resulting from the plastic bag ban.  (This is what Surfrider Foundation has been saying all along!)  The Petitioners argued that this public benefit was actually a payment to the County as a result of the ordinance - and therefore the County was gaining revenue, but the Judge rightly dismissed that notion outright stating "no one disputes the environmental benefit."  The issue is who obtains the revenue from the price of the paper bag.

After pointing out several of Petitioners leaps in logics and waiver of half-baked arguments only brought up in reply briefing, the Judge handily rejected the Petitioners request to repeal the bag ban ordinance. He adopted his tentative decision as the final order. And another bag ban has survived the threat of litigation from the plastics industry!