The Texas Supreme Court Friday morning upheld an appeals court ruling that the ban on plastic grocery bags in Laredo is illegal. By extension, the ruling invalidates similar bans in Austin and a handful of other Texas cities.
In his ruling, Chief Justice Nathan Hecht agreed with the conclusion reached by the state’s Fourth Court of Appeals in August of 2016, that Laredo’s bag ban violated the Texas Solid Waste Disposal Act.
“The Texas Constitution states that city ordinances cannot conflict with state law,” Hecht wrote. “The Texas Solid Waste Disposal Act (“the Act”) provides that “[a] local government … may not adopt an ordinance … to … prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law.”
Austin’s ban on plastic grocery bags has been in effect since March of 2013. Fort Stockton, Freer, Laguna Vista, South Padre Island and Sunset Valley are also among the cities with bag bans in effect.
However, the bans have been in retreat since the Laredo Merchants Association sued in March 2015. Dallas repealed its bag ban in June of that year. Port Aransas followed in September of 2016 The city of Kermit rescinded its ban in June of 2017.
In May of 2017, when Brownsville repealed its bag ban, Texas Attorney General Ken Paxton dropped a lawsuit against the city for violating state law. On Friday, Paxton applauded the Supreme Court’s decision on the Laredo bag ban.
“Municipalities violate the law when they unlawfully pass the burden of solid waste management to citizens and retailers through illegal bag bans,” Paxton said in a written statement. “I hope that Laredo, Austin, and any other jurisdictions that have enacted illegal bag bans will take note and voluntarily bring their ordinances into compliance with state law. Should they decline to do so, I expect the ruling will be used to invalidate any other illegal bag bans statewide.”
“This ruling sends the unambiguous message to all local jurisdictions in Texas that they do not get to simply ignore laws they don’t agree with.”
The Texas Monitor contacted the offices of Austin Mayor Steve Adler and the members of the City Council Friday requesting comment on the Supreme Court ruling.
Mayor Pro Tem Kathie Tovo said she had not seen the text of the ruling, but said she “fervently hoped the regulation could stay in place.” She thought that city attorneys would be studying the ruling to see if Austin could maintain the bag ban.
Short of maintaining the ban, Tovo said she hoped local retailers, who have been good partners in enforcing the ban, would electively choose not to offer the thin plastic bags to customers again.
“It’s clear that since 2012 people have adjusted to it and it seems we’ve had very good results,” Tovo said. “What a difference the bag ban has made here.”
Council member Ellen Troxclair said in an email, “I’m glad to hear of the court’s ruling and hope it means that we will have one less regulation in Austin soon as well. This is yet another example of government micro-managing our lives with detrimental unintended consequences. A City of Austin report cited that the bag ban led to an increase in reusable plastic bags in the recycling stream, higher cost to consumers, and unforeseen expenses to retailers.”
The Austin City Council voted unanimously to enact the ban and dedicated 2 million taxpayer dollars for public education about the ban program in March of 2012. The council had been motivated by estimates that Austin consumers were using 263 million plastic bags a year at a cost of $850,000 a year to remove them from the waste stream.
“The bags litter our rivers and streams. They are harmful to our wildlife — and because most of them aren’t biodegradable — they are around forever,” then-Mayor Lee Leffingwell said at the time.
However, Texas Watchdog reported at the time that those numbers had been inflated by about 2.5 times by a misreading of a national Keep America Beautiful waste study.
Three years after passage, a study commissioned by the city concluded that the ban predictably led shoppers to replace the thin-gauge banned bags with thicker, less biodegradable bags.
“While most citizen’s [sic] find the bag ordinance to be beneficially [sic] to the environment,” the report’s author, Aaron Waters, wrote, “at least in terms of the reduction of litter, the results do not indicate a clear success.”
Hecht’s decision acknowledged the fight over plastic bag bans were part of a larger political struggle, the “roving, roiling debate over local control of public affairs.” The fight has been carried out on several fronts, including ridesharing, short term rentals, fracking in Denton, and, currently, mandatory paid sick leave ordinances in Austin and under discussion in San Antonio and Dallas.
“Both sides of the debate and the many amici curiae who have weighed in assert public-policy arguments raising economic, environmental, and uniformity concerns,” Hecht wrote. “But those arguments are not ours to resolve. “The wisdom or expediency of the law is the Legislature’s prerogative, not ours.”
“We must take statutes as they are written, and the one before us is written quite clearly. Its limitation on local control encompasses the ordinance. We affirm the judgment of the court of appeals.”
Hecht said the Laredo Merchants Association argued in its lawsuit that the city’s bag ordinance ignored Section 361.0961 of the Texas Solid Waste Disposal Act and so violated the Texas Constitution.
That section “expressly precludes a local government from ‘prohibiting or restricting the sale or use of a container or package’ if the restraint is for ‘solid waste management purposes’ and the “manner” of regulation is ‘not authorized by state law.’”
“The Ordinance has a solid waste management purpose and effect; and the City is not empowered by state law to prohibit the sale or use of plastic and paper bags,” Hecht wrote.
George Kelemen, president of the Texas Retailers Association said he was “very very pleased” with a victory over a patchwork of regulations that were burdensome for businesses. On a basic level, retailers won’t have to spend more for packaging that is just another cost burden to the consumer.”
Kelemen said his organization is committed to increasing its sponsorship of recycling programs at its retail outlets and education programs like the one in Dallas public schools started after the city rolled back its bag ban.
Mark Lisheron can be reached at [email protected].