Banning Plastic Bags – Are Environmental Impact Reports Needed?

By: Kenton S. Brice

The California Supreme Court upheld an ordinance banning the use of plastic bags without the need for an Environmental Impact Report (“EIR”) in Save the Plastic Bag Coalition v. City of Manhattan Beach, No.S180720.  Save the Plastic Bag Coalition was created partly in responses to Manhattan Beach joining multiple cities and counties in California banning or otherwise restricting the use of point of sale carry-out style plastic bags.  The Coalition sued Manhattan Beach, stating that the ordinance that created the ban violated the California Environmental Quality Act (“CEQA”) because Manhattan Beach had not conducted an EIR.

The Santa Barbara City Council recently tweaked its ordinance on these types of plastic bags without a wholesale ban. In its proceedings, the Council suggested that an EIR would be needed before undertaking new taxes or bans on plastic bags, citing the Manhattan Beach litigation as one of the reasons.  According to Council, an EIR is a costly and time-consuming report, potentially taking up to 4,000 staff hours and $50,000 to $100,000.  Given the Supreme Court has opened the door regarding plastic bag bans, Santa Barbara may be able to achieve cost savings by avoiding the EIR requirement in light of the recent decision.

According to the CEQA, an EIR is not required unless the proposed project would have a “significant effect on the environment.” (Cal. Pub. Res. Code §§ 21100(a), 21151(a) [a city ordinance is considered a “project” under CEQA].) CEQA defines a “significant effect on the environment” as a “substantial, or potentially substantial, adverse change in the environment.” (CEQA § 21068).  In Save The Plastic Bag Coalition, the California Supreme Court unanimously ruled that “[s]ubstantial evidence and common sense” supported Manhattan Beach’s determination that banning the use of plastic bags would have no significant environmental impact and therefore a “negative declaration” was sufficient to comply with the California Environmental Quality Act. In coming to this conclusion, the Court ruled that if “‘[t]here is no substantial evidence, in light of the whole record … that the project may have a significant effect on the environment,’ the agency may adopt a negative declaration.” A “negative declaration” is “a written statement briefly describing the reasons that a proposed project will not have a significant effect on the environment and does not require the preparation of an environmental report.” (CEQA § 21064). Given the Court’s ruling, Santa Barbara may be able to move forward without the expense of an EIR by issuing a negative declaration.

The largest factor that the Court reviewed was the impact that any increased usage of paper bags would have on the environment as a result of the proposed ban on plastic bags. The Save the Plastic Bag Coalition argued, and the trial and appellate courts agreed, that an EIR was needed because the increased use of paper bags would have a substantial adverse effect on the environment. The Court conceded, that on the record, “it is undisputed that the manufacture, transportation, recycling, and landfill disposal of paper bags entail more negative environmental consequences than do the same aspects of the plastic bag ‘life cycle.’” However, in overruling the lower courts’ decisions, the Supreme Court found that the CEQA does not require an “exhaustive” or “global” impact analysis of every relative course of action to determine if a negative declaration would be sufficient in place of an EIR.

Specifically, the CEQA states that “any significant effect on the environment shall be limited to substantial, or potentially substantial, adverse changes in physical conditions which exist within the area as defined in Section 21060.5.”  (Emphasis added). Section 21060.5 refers to “the physical conditions which exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, [and] objects of historic or aesthetic significance.”  This does not mean that the CEQA ignores the realities of the interconnected world we live in. The Court, quoting Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, reiterated that the “purpose of CEQA would be undermined if the appropriate governmental agencies went forward without an awareness of the effects a project will have on areas outside of the boundaries of the project area.” However, in line with Muzzy, the Court found that an agency is not required “to conduct an exhaustive analysis of all conceivable impacts a project may have in areas outside its geographical boundaries.” In short, any determinations made as to the environmental effects a proposed ordinance would have are reasonably limited to the local area and that the global effects are only a factor to be considered.

Throughout the Supreme Court’s decision, it consistently noted that the smaller population and business community of Manhattan Beach as factors when looking into the environmental impact of heightened paper bag usage and the need for EIR.  The Court ultimately found that the potential number of substitute paper bags in the absence of plastic bags, given the size of the area, population, and number of businesses in Manhattan Beach, would not significantly impact the environment to warrant an EIR.  Although Santa Barbara is approximately 2.5 times the size of Manhattan Beach and definitely has more businesses, it seems within the context of the new decision, the City would have a substantial legal footing to avoid an EIR.

The City Council, in its “Council Action Report on Options For Reducing The Distribution Of Single-Use Bags Within The City Of Santa Barbara,” repeated the concerns that the Court ruled on regarding whether an EIR would be needed. In “Option 4,” which is similar in part to Manhattan Beach’s ordinance, the City Council cited the cost of an EIR as having a potentially adverse impact on the community for pursuing a ban on plastic bags.  However, according to the Report, Option 4 extends even farther than Manhattan Beach’s ordinance. It not only bans plastic bags, but also taxes the use of paper bags through fee on their use. This fee would significantly reduce the amount of paper bags that would be used as substitutes for plastic bags and greatly encourage the use of reusable grocery bags.  In fact, the Report estimates that the fee on paper bags would cost a consumer between $32 and $81 per year for single use bags, while switching to reusable bags would only have to spend an initial investment of $8 and $24.  These estimates makes reusable bags a more environmental and monetarily conscious choice over paper bags.

On its face, it seems that the population and business factors in Santa Barbara may call for an EIR. However, with the paper bag fee contained in Option 4, any increase in paper bags as substitutes for plastic bags will most likely be negated, therefore having very little impact on the environment and put Santa Barbara’s proposed ordinance more in line with the Supreme Court’s decision.  This would allow Santa Barbara to issue a negative declaration and save valuable taxpayer dollars and stay at the forefront of environmental protections in California.

Kenton S. Brice is an associate in the law firm of Kelley Clarke PC’s Dallas, Texas office.  He practices in the areas of civil litigation, small business representation, and entertainment law.

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