The Plastic Bag Waiting Game

East Bay cities that want to ban single-use plastic bags are waiting for a state Supreme Court decision later this year.

For three years, Bay Area cities have led the environmentalist charge against single-use plastic bags. When San Francisco became the first city in North America to ban the bags from large supermarkets and pharmacies in March 2007, Berkeley and Oakland were only a few months behind. But after Oakland attempted to replicate San Francisco’s ordinance in July of that year, it was sued by the plastic bag industry and lost in court. A critical mass of environmental momentum instead became a dead end — and today, more than three years later, the two East Bay cities that helped pioneer plastic bag bans are stuck watching from the sidelines.

But Berkeley and Oakland are not alone; the cycle seems to be repeating itself in Richmond. With strong city council and staff support behind drafting a plastic bag ban of its own, the city contributed $2,500 last July to nonprofit Green Cities California in hopes of finding a way around the plastic bag industry. A consortium of plastics manufacturers had defeated Oakland in court by convincing a judge that the city should have completed an expensive environmental impact report before enacting its plastic bag ban. And so Green Cities’ solution was to prepare a “Master Environmental Assessment” designed to reduce the cost of doing an EIR by providing an all-in-one consolidation of existing literature and research.

But now that the report is out, Richmond may not be making use of it after all. The reason is that the master assessment still requires that cities conduct their own EIRs, and Richmond is scrambling to complete one. “I don’t know where the funding would come from to do an EIR,” said Jennifer Ly, sustainability associate for the city. “We have a really small budget, so if there’s any way we can avoid doing an EIR, that would be ideal.”

Now all three cities are stuck in an inadvertent game of chicken, each afraid to act for fear of spending unnecessary money — or, alternatively, drawing a lawsuit from the plastic bag industry. Ly said Richmond had been keeping an eye on Berkeley, which up until a couple of weeks ago was planning to move forward this summer with a ban that would also include a surcharge on paper bags, which it hoped would stand up in court without an EIR. However, a city official who asked not to be named because of the issue’s evolving nature, said that Berkeley abruptly scrapped its plan when its lawyers determined that option wasn’t as legally robust as they’d hoped. Now, the official said, Berkeley is considering paths pursued by other cities, and may follow San Jose into completing an EIR.

According to Councilman Kriss Worthington, Berkeley first considered a plastic bag ban in 2005, two years before San Francisco’s, but wasn’t able to enact it before industry opposition became too strong. As a result, it has faced a frustrating series of delays ever since. “The city is trying to create the strongest legal protections for not having the City of Berkeley be sued, and understanding what kind of research might protect you,” he said. “We will be persistent, and just because we’ve been delayed doesn’t mean we’re not going to do the right thing.”

Oakland, meanwhile, has all but given up. “We were sued, and that was sort of the end of the road,” said Becky Dowdakin, solid waste and recycling program supervisor. “It was clear from the judge and from the attorney’s advice that we couldn’t just rewrite the ordinance a bit and avoid the whole EIR thing.” Estimating the cost of such a report at $150,000 to $200,000 — even with the help of a master assessment — Dowdakin said the city simply didn’t have the funds to proceed and would have to wait until a better option came along.

There is one potential solution, and Berkeley, Richmond, and Oakland are all keeping a sharp eye on it. Late last month, the California Supreme Court agreed to hear a case involving a proposed plastic bag ban in the Southern California city of Manhattan Beach. Its city council approved an ordinance banning the distribution of plastic checkout bags at all retail stores in July 2008. Like Oakland, it was sued by the plastic bag industry for not completing an environmental impact report. The industry used the name “Coalition to Support Plastic Bag Recycling” when it sued Oakland, and is going by “Save the Plastic Bag Coalition” in its suit against Manhattan Beach. It also has sued Fairfax, Los Angeles County, and Palo Alto and threatened to sue seven others, including Mountain View, Morgan Hill, and San Jose. The industry, however, has not challenged San Francisco’s ban, which is still in place.

Manhattan Beach lost at the trial court level, appealed, and then lost again. City Attorney Robert Wadden then successfully petitioned the state Supreme Court to hear the city’s case. A ruling could be months away, yet no matter the outcome, the consequences will be significant: Either all plastic bag bans will require expensive EIRs, or the bar will be lowered to allow for comprehensive approaches such as the one Berkeley just abandoned. In fact, Worthington said that Berkeley may wait until the court makes its ruling before taking any more chances.

The final piece of the waiting game is statewide legislation that could render local ordinances moot. AB 1998, authored by Assemblywoman Julia Brownley of Woodland Hills, would ban all single-use carry-out bags — paper and plastic — in California stores.

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