Plastic Pollution, Bag Bans, Expanded Polystyrene Foam
January 03 2019

Plastic Bag and Container Fee Preemption Bills Die in Ohio Legislature

by Sarah Damron

While many domestic and foreign governments have taken progressive action to curb litter and waste--particularly from single-use plastic convenience items like plastic carryout bags, plastic straws, and expanded foam containers--some states in the U.S. of A. have taken a contrary, regressive stance to allow commonly littered items to continue to proliferate by considering laws that would prohibit local governments from enacting ban and/or fee-based ordinances on such items, all the while failing to commit to amplified action on litter reduction at the state level. Ohio was the most recent state in which a state legislature considered supporting the litter status quo, and also the most recent state in which such bills failed to pass, thus joining South Carolina and Georgia in continuing to allow local governments to use their home rule authority to decide whether or not bans or fees may help address local litter concerns.

Bans and fees, or a combination of the two, have shown to be effective means of curbing the demand and distribution of otherwise "free" items like carryout bags, which are otherwise handed out bountifully to consumers at the checkout without thought from the retailer or consumer as to the repercussions associated with the generation of vast amounts of non-biodegradable, non-recycled waste. In the instance of a ban, targeted items like plastic bags are no longer allowed to be distributed, thus reducing their contribution to the waste cycle. In fee situations, a government may establish a consumer-facing fee on targeted items, creating an economic disincentive to the consumer who must make a decision to purchase the once "free" item if they still want it. In China, a ban was placed on plastic bags (less than 25 microns thick) and a fee on plastic bags was introduced on June 1, 2008. Plastic bag use fell between 60 and 80% in Chinese supermarkets, and 40 billion fewer bags were used (source: https://doi.org/10.1016/j.marpolbul.2017.02.048).

Some state governments domestically have shirked this evidence. Unlike anywhere else in the world, the state legislatures in states including but not limited to Michigan, Wisconsin, Arizona, Indiana, Idaho, South Carolina, and Georgia introduced, and in some cases passed into law, legislation banning the use of container bans and/or fees by local governments. Interestingly, the language of these bills was strikingly similar to one another, and strikingly similar to model legislation promulgated by the American Legislative Exchange Council. The first five states listed above now have laws on the books banning bag bans and fees. The second two, South Carolina and Georgia, actively considered this same ban-on-ban legislation, but ended up with bipartisan opposition to the overreach of state government into local government's rights to home rule.

Ohio considered two such bills in the most recent state legislative session, with one passing out of the house of origin over to the second house. Although neither bill passed both houses before the end of session, meaning that they are no longer on the table, initial observations from the bills' committee hearings indicate that the majority of state legislators in those committees seemed ready and willing to undermine the authority of their local government counterparts to make decisions in the best interest of their communities. The next legislative session in Ohio begins in a matter of days, and it's quite possible that these preemption proposals will get new bill numbers and will be considered once again. In the meantime, home rule authority on container laws still stands, and local governments in Ohio are free to employ their constitutionally protected authority to enact bans or fees on carryout bags or any other single-use containers as they may see fit for the benefit of their communities. Let's hope that Ohio's state lawmakers come to see the approach of banning container bans and fees for what it is: an ill-advised power grab that stymies local solutions to combat waste and litter.