Legal, Plastic Pollution, Bag Bans
June 29 2018

Texas Supreme Court Strikes Down Laredo Bag Ban, But Legislative Action Urged

by Staley Prom

The Texas Supreme Court issued a disappointing decision last week, striking down the City of Laredo’s single-use plastic bag ordinance. Chief Justice Hecht delivered the Court’s opinion in City of Laredo v. Laredo Merchants Association, in favor of the Laredo Merchants Association. Rejecting Laredo’s well-reasoned arguments and policies justifying its ordinance, the decision holds that the city’s ordinance prohibiting merchants from providing single-use plastic and paper bags to customers is preempted by State law and therefore invalidated.

As the Court provides, the Texas Constitution states that city ordinances cannot conflict with state law. As the Court further explains, the Texas Solid Waste Disposal Act (“the Act”), Section 361.0961, which was added in 1993, provides that “[a] local government . . . may not adopt an ordinance . . . to . . . prohibit or restrict, [1] for solid waste management purposes, [2] the sale or use of a container or package [3] in a manner not authorized by state law.””

At issue therefore, was whether Laredo’s local anti-litter ordinance prohibiting merchants from providing single-use plastic and paper bags comes within the Act’s proscribed scope. The Court’s opinion essentially ignored the various policy arguments set forth in the many amici briefs, stating that it was not in a position to rule upon the policy arguments, which instead are within the Legislature’s purview. The Court focused only on the Act’s statutory language and the ordinary meaning of its words, in addressing Section 361.0961’s three elements. In short summary, the Court concluded Laredo’s ordinance was for solid waste management purposes; that single-use paper and plastic bags are “containers” regulated by the Act; and that the Texas Legislature had not authorized “the manner” in which Laredo sought to regulate single use bags. Therefore, it concluded the ordinance was preempted.

However, while the majority opinion dismissed the policy arguments in favor of Laredo’s ordinance, the concurring opinion, written by Justice Guzman and joined by Justice Lehrmann, strongly recognized the urgency for jurisdictions like Laredo to act to halt the “grave consequences” from plastic bags, foam cups, plastic water bottles, and similar pollutants on the environment. “As a society, we are at the point where complacency has become complicity,” it reads.   

Further, “…[S]ingle use plastic bags… are a particularly pernicious form of this non-biodegradable menace. The transitory usefulness of these disposable containers comes at a genuine cost- they clog our landfills, impede our recycling efforts, kill domestic animals and wildlife (in excrutiating ways), hamper flood control efforts, sully our seas, and stain our vistas,” the opinion elaborates.  “As the amicus briefs vividly relate, these so-called urban tumbleweeds are a blight and a nuisance, creating public eyesores, harming the ecology and our economic industries, and imposing significant costs on taxpayers and municipalities for litter abatement.”  

The concurrence similarly notes the deleterious effects of single-use plastic bags on livestock, fish, birds, and other wildlife, and referring to the numerous amicus curiae parties who weighed in in support of Laredo’s ordinance, provides: “As they say, quite irrefutably, preserving the well-being of livestock and wildlife is a biological imperative that is also vitally important to Texas industries, tourism, and recreational activities that fuel our state and local economies.”  Specifically, it recognizes the harms Texas cattle ranchers face, as plastic-bag litter migrates into their pastures and is consumed by their animals, as well as the adverse economic consequences on Texas cotton ginners, as plastic-bag litter contaminates and soils their cotton harvests.  Finally, the concurring opinion acknowledges the burden municipalities and taxpayers bear, funding litter cleanup costs. The City of Laredo alone pays at least $340,000 a year for plastic-bag cleanup.    

While, ultimately, the Court prevented Laredo from addressing these grave harms, the Surfrider Foundation highlights the concurrence’s conclusion – as Justice Guzman put it, “I urge the Legislature to take direct ameliorative action or, as Section 361.0961(a)(1) [of the Texas Solid Waste Disposal Act] contemplates, create a specific exception to preemption of local control.”  The plastic pollution problem cannot continue.  

While this decision is a disappointing loss for Texas’ environment and industries that rely on plastic-litter free spaces, Surfrider’s Texas Chapters are committed to tackling the single-use plastics problem through education, outreach, and its Ocean Friendly Restaurants Program. Additionally, the Surfrider Foundation and a coalition of environmental organizations around Texas are asking effected grocery stores to voluntarily continue the bag ban. To learn more, check out this guest column by Texas Coastal Bend Chapter Vice Chair Neil McQueen, published in the Caller Times this week.

Meanwhile, the campaign against single-use plastics continues to make progress elsewhere, including a recent court victory for the Canadian city of Victoria.  In stark contrast to the Texas decision, the city of Victoria won its court battle in the British Columbia Supreme Court over the right to ban plastic bags. In his ruling, Justice Nathan Smith said the city’s law is legal because cities are allowed to regulate business transactions.