Legal, Plastic Pollution, Bag Bans
March 25 2015

Act Locally - While You Still Can!

by Angela Howe

3/30/15 Update: The Georgia local bag ban preeemption bill failed to pass the state House of Representatives on Friday by a solid 85-67 margin, due in part to a coalition of environmentalists and conservative supporters of local control.

At Surfrider Foundation, we encourage our members and supporters to “Think Globally, Act Locally” in order to make a difference to protect coastal resources on the local level.  This has been highly effective – so much so, that we have seen a series of local bag bans in Hawaii, for instance, lead to the first ban on single-use plastic checkout bags covering the entire state.  In California, over 100 municipalities had enacted local reusable ordinances before the state took action to pass SB 270, a statewide bag ban in September 2014.  One alarming trend in statewide legislation, however, is for legislators to propose to block local authority in order to preempt action on single-use plastic bag regulations, fracking bans and energy consumption reporting requirements, for instance.

Currently, Texas, Georgia, Arizona and Missouri have introduced bills to preclude cities and local agencies from taking action on local issues.  This type of preemptive statewide regulation has fostered opposition by strange bedfellows, including environmental groups (such as Texas Campaign for the Environment) and some Tea Party Republicans, for instance, who support Texas local bag bans. Preemption opponents argue that cities should be entrusted to govern for the common good and that local governments are much less susceptible to corporate special interests. This is an odd trend by state governments, especially considering that the states that are proposing such measures are also the most vocal opponents of any federal preemption measures. 

In Surfrider’s experience, local action is often much more swift and responsive than state efforts.  State politicians appear to be more heavily influenced by industry (with hired lobbyists) in state capitals versus most city halls.  At least this was the experience in California, where it took six years to garner a statewide bag ban after dozens of cities took local action to protect their beaches and waterways within a matter of months.  The New York Times reports that the strategy of statewide preemption was pioneered by tobacco companies 30 years ago to override local action on smoking bans.  Today, it is used by various industry groups, including the Progressive Bag Alliance, a plastic bag industry group that fights bag bans.

Currently, there are at least four states with bills preempting local action that would affect local bag ban authority:

Arizona - The Arizona House Commerce Committee approved legislation that would make it illegal for any community to impose any sort of fee or deposit on the use of "auxiliary containers." That includes everything from soda bottles and cups to disposable bags "used for transporting merchandise or food." The provision in SB 1241 is being moved in tandem with a prohibition against cities and counties from requiring businesses and building owners from having to report their energy consumption.  The bill now goes on the to full House for a vote.

Georgia - Georgia’s prohibition on bag bans, S.B. 139 provides that any regulation of “auxiliary containers” at stores shall only be done by general [state] law. The Georgia legislature is trying to preempt local governments, such as Tybee Island, from passing plastic bag ordinances.  This bill would also block local governments from regulating expanded polystyrene foam (commonly known as Styrofoam TM) containers, as well.

Missouri - Meanwhile, in Missouri, on March 19, 2015, the House passed H.B. 722 and headed to the Senate. The bill would prevent any "political subdivision from imposing any ban, fee, or tax upon the use of paper or plastic bags for packaging any item or good purchased."  This bill specifies that all merchants, itinerant vendors, and peddlers have the option to provide customers with a paper or plastic bag for any item or good purchased.  Under this bill, no political subdivision can impose any ban, fee, or tax upon the use of paper or plastic bags for packaging any item or good purchased.

Texas - In the Lone Star State, H.B. 1939, would provide that a business that sells an item to a customer may provide to the customer at the point of sale a bag or other container made from any material, and that an ordinance or regulation adopted by a municipality purporting to restrict or prohibit a business from, require a business to charge a customer for, or tax or impose penalties on a business for providing to a customer at a point of sale a bag or other container made from any material is invalid and has no effect.  Reportedly, Texas Governor Greg Abbott supports H.B. 1939.

Additionally in Texas, there is a bill with a larger scope, H.B. 343, which would affect an array of local laws, including landscaping regulation, fracking bans, as well as plastic bag bans.  This could partially be in response to the success of the Town of Denton, Texas, in passing a local fracking ban last year due to public outcry in response to fracking fumes and related sickness.

All in all, this is particularly worrisome trend in state governance, not only for Surfrider Foundation's fight against marine plastic pollution, but also for local regulation that can address an array of other environmental issues in a nimble and speedy fashion.  After all, if the states are the "laboratories of democracy" for the federal government, isn't the same true of local governments, which can offer a testing ground for eventual state regulation?  Regardless, Surfrider Foundation will continue to strongly oppose states' attempts to preempt local bag bans as part of the advocacy of our Rise Above Plastics program.