Cities can no longer ban retailers from bagging purchased items in single-use plastic bags. The Texas Supreme Court recently ruled that the Texas Solid Waste Disposal Act preempted any attempts by a municipality to regulate the use of plastic bags. (Photo by Kevork Djansezian/Getty Images)
Texas Attorney General Ken Paxton gave notice to 11 cities, including Corpus Christi and Port Aransas, that their single-use plastic bag ban ordinances were invalid and could no longer be legally enforced. The July 2 letter was triggered by the Texas Supreme Court’s recent decision in the case of City of Laredo v. Laredo Merchants Association, which found that a city ordinance to ban single-use plastic bags was preempted by the Texas Solid Waste Disposal Act.
Port Aransas suspended its ban in September 2016 based on advice from its city attorney. The suspension came after the Fourth Court of Appeals in San Antonio first ruled against the ban in August 2016. The city voted to permanently lift its ban in late July.
At this time, Corpus Christi City Council members do not intend to make any changes to its ban, which only applies to city facilities, city-sponsored events, or events on city property. City attorneys are looking into the court decision, however, to see if action is needed. The city does not restrict retailers from using the bags.
The city of Austin recently announced it would repeal its ban so retailers can again bag groceries and other goods in single-use plastic bags. A letter from the City Council did stress, however, that retailers did not have to pick up the environmentally questionable practice again.
“We’ve seen a huge change, and we’re proud of what our community has done to help keep Austin beautiful, the environment safe, and our storm drain clear,” the council states in its letter. “… We are also confident that the Austin community will continue to do their best to minimize plastic bag waste.”
In his letter to the cities, Paxton included a copy of the court ruling and stressed that cities wanting to pursue bag bans would have to seek a legislative solution.
“While your city may have a different policy perspective on the value of bag bans, the Supreme Court was clear that “(t)he wisdom or expediency of the law is the legislature’s prerogative, not ours,’” he wrote, quoting from the ruling.
In the Laredo Merchants case, the organization challenged the city of Laredo’s municipal ordinance to ban plastic bags. The trial court upheld the ordinance, but a divided San Antonio court of appeals found the ordinance invalid. The case was appealed to the Texas Supreme Court.
Laredo’s ordinance sought to prohibit any commercial establishment from providing single-use plastic and paper bags to customers for point-of-sale purchases. Like Austin’s ban, it included use in grocery and retail stores in its ban. An infraction was considered a class C misdemeanor, and violators faced the possibility of fines of up to $2,000 per violation.
The express purpose of the law was to control the litter problem caused by discarded plastic bags, an unsightly environmental problem that plagues ranchers, farmers, fishermen, boat owners, and the tourist industry. Plastic bags also cause problems with city sewage systems.
The magnitude of the problems is significant, say proponents of the bans. In Corpus Christi, for example, experts estimate that 300,000 plastic bags are given out by grocery and retail establishments each day. Plastic bags are regularly found in the stomachs of dead sea creatures.
Affirming the majority opinion of the San Antonio court of appeals, the Texas Supreme Court found that, under the Texas Constitution, a statute passed by the Texas Legislature takes precedence over and therefore preempts any local municipal ordinance that is inconsistent with it.
The question before the Supreme Court was whether a plastic or paper bag was a “container” or “package” within the meaning of the Texas Solid Waste Disposal Act. The Texas Supreme Court found that the bags were containers and determined that the Laredo ordinance conflicted with the Texas statute.
The Texas Supreme Court did not address the issue of whether such ordinances were reasonable or even laudable efforts to address the problem of litter caused by single-use plastic and paper bags.
“We must take the statutes as they are written, and the one before us is written quite clearly,” wrote Chief Justice Nathan Hecht, who authored the majority opinion of the court.
While the Texas Supreme Court’s decision prevents municipalities from passing ordinances prohibiting single-use plastic and paper bags to customers, it does not prevent businesses from taking voluntary steps to discourage their use.
