The Surfrider Foundation, alongside our coalition partners, Ohio Environmental Council, and Sierra Club, has filed an amicus curiae (“friend of the court”) brief to defend the City of Athens’ constitutional right to regulate single-use plastic bags in furtherance of the City’s local health, safety, and sanitation efforts. The amicus brief was filed on May 6, 2024 in the Athens County Court of Common Pleas, and Judge George McCarthy will oversee the case. Surfrider, OEC, and Sierra Club are generously represented by Chris Tavenor, General Counsel for the Ohio Environmental Council. The lawsuit was originally filed by the Ohio Attorney General on December 27, 2023, against the City of Athens.
The Surfrider Foundation, on behalf of its Northern Ohio Chapter, is formally weighing in on this lawsuit to protect waterways, outdoor spaces, and human health from the detrimental harm caused by plastic pollution. “At chapter beach cleanups, we routinely find that the litter collected is primarily comprised of plastic, including single-use plastic items such as plastic bags, plastic beverage bottles, and plastic straws,” states Dr. Lara Roketenetz, chapter Volunteer Coordinator. “It doesn’t make sense to allow the flow of single-use plastic waste and litter to continue unabated, and it doesn’t make sense to prohibit a local government from enacting a law to address the problem at the source.”
Beginning in 2017, legislation was proposed in the Ohio state legislature to preempt the constitutionally-derived authority of local governments to regulate “auxiliary containers,” which were broadly defined to include a whole cadre of single-use food service items such as plastic bags, beverage bottles, cans, cups and more. In defense of local governments’ interests and efforts to prevent single-use waste at the source, Surfrider’s Northern Ohio Chapter worked with the Sierra Club Ohio Chapter and allies to oppose state legislative efforts that would limit local authority. Although Surfrider and allies were able to fend off passage for two biennial sessions, ultimately the bill language was incorporated into the state’s budget bill in 2021.
In 2021, the State of Ohio enacted, as part of its budget bill, H.B. 110, Ohio Revised Code (“O.R.C.”) Sec. 3736.021, which states, “[a] person may use an Auxiliary Container for purposes of commerce or otherwise.” Person, as defined by the State, includes a business or an individual, and interestingly, Auxiliary Container is defined in O.R.C. Sec. 3736.32 on littering and includes single-use plastic bags (as well as many other types of containers and bags).
The Ohio Constitution, Article XVIII, Section 3, gives municipalities the “authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” This is also known as “Home Rule.” Accordingly, in May 2023, Athens City Council passed an ordinance (Ord. No. 0-25-23) stating that no store or vendor shall provide or sell a single-use, plastic carry-out bag to a customer after January 1, 2024.
The State is asking the court to invalidate the City of Athens’ law. The State asserts, in its complaint, that state law gives individuals and businesses the right to use single-use plastic bags, that the City of Athens exceeded its Home Rule authority by enacting an ordinance banning the sale and distribution of single-use plastic bags, and that the City’s ordinance is in conflict with O.R.C. 3736.021. The City maintains its ordinance is not in conflict with the State statute and that enacting the ordinance is a valid exercise of its constitutionally protected Home Rule authority that the City will defend in court.
Surfrider agrees with the City’s legal position that the ordinance is an appropriate response to the global plastic pollution problem, within its Home Rule authority. In enacting the ordinance, which is strongly supported by City residents and businesses, the City is attempting to address the detrimental environmental and human health impacts of these plastics within its jurisdiction. Single-use plastic bags enter the environment, block storm drains, cause operational problems at recycling facilities, and contribute to litter in the City of Athens.
Every piece of plastic ever made will exist forever. Plastic never fully degrades, instead, it breaks down into tiny microplastic particles, polluting our waterways, harming wildlife, getting into the water that we drink and into the food we eat. In a recent study published by the New England Journal of Medicine, scientists discovered that 58% of the over 300 humans studied, had micro- and nanoplastics in their carotid artery plaque! These plastics contribute to an increased risk of heart attack and stroke, which can be fatal. The more we look, the more we’re finding microplastics in new places, as discussed in a recent Surfrider blog.
Plastic bags, despite being labeled as recyclable, cannot actually be recycled. These bags frequently jam up machines at commercial recycling facilities, resulting in equipment damage and delays.
The City, in enacting the ordinance, acknowledges that studies have documented the presence of microplastics and the resultant “comprehensive contamination” in our food supply due to plastic litter.
The State argues that the ordinance creates a hardship for businesses and that it causes “irreparable harm.” The City and Surfrider maintain, however, that the State is actually causing irreparable harm by attempting to stop the City from addressing the problems caused by single-use plastic bags. Further, it’s hard to argue the ordinance causes hardship when the City reports roughly 90% voluntary compliance so far and has even set aside $5,000 to assist businesses with switching away from single-use plastics.
Studies have demonstrated that plastic bag regulations, like the Athens ordinance, are effective in reducing the amount of litter from single-use plastic bags and encourage people to switch to more sustainable options such as paper or reusable bags.
As stated by OEC staff member and resident of the City of Athens, Molly Jo Stanley: "Our community is among those across the country taking it upon ourselves to address and reduce the harms of plastic pollution on current and future generations. The city deserves support in its fight to uphold its democratically decided policy."
Stay tuned to Surfrider's Northern Ohio Chapter’s website for further updates.