Thursday, April 24, 2008

Legislation: Oakland, California's Plastic Grocery Bag Ban Law Not in the 'Bag' Yet

Alameda County (where the city of Oakland is located) Superior Court Judge Frank Roesch has issued a ruling placing an injunction on the single-use plastic carrier bag ban the Oakland City Council passed into law last year.

Oakland's plastic grocery bag law would ban food and grocery retailers with stores that do over $1 million a year in sales from offering the single-use plastic carrier bags in their stores. The grocers would still be able to offer paper grocery sacks to shoppers for no charge however.

A single-use plastic carrier bag trade association called The Coalition to Support Plastic Bag Recycling sued the city of Oakland last summer after the bag ban was passed by the lawmakers.

The trade group argued in the lawsuit that single-use paper grocery bags take more energy to produce and use more landfill space when disposed of than single-use plastic carrier bags. They further argued the city of Oakland should have conducted an environmental impact review (EIR) comparing the energy inputs required to produce the paper grocery sacks and the plastic bags, as well as studying the landfill disposal issue as part of that EIR before passing the single-use plastic carrier bag ban law.

California has a statewide law which requires supermarkets to put single-use plastic carrier bag recycling bins in their stores and have the bags picked up regularly in-store by a certified recycling company, as well as requiring the retailers to sell reusable shopping bags in those stores.

Although the single-use plastic carrier bag ban law was past last year, Oakland has yet to implement it because of the lawsuit.

Judge Roesch's ruling states: "The court...finds that substantial evidence in the record supports at least a fair argument that single-use paper bags are more damaging than single-use plastic bags."

John Russo, Oakland's City Attorney, says he will ask the city council this week if it wants to contest the court's ruling or do an environmental review of the ban, which he says will cost the city about $100,000 to conduct.

In response to Judge Roesch's ruling in favor of the Coalition to Support Plastic Bag Recycling's lawsuit, Keith Cristman, the senior director of the American Chemistry Council's plastics division which opposes the Oakland law, said in a statement that "banning plastic bags would dramatically increase energy use, double greenhouse gas emissions and increase waste. Recycling plastic bags is the right approach and makes plastic bags the environmentally responsible choice."

Christman is basing his arguments above on the coalition's argument that banning the single-use plastic carrier bags in the Oakland food and grocery stores with $1 million or more in annual sales would lead to a significant increase in the use of paper grocery bags.

There is some evidence in nearby San Francisco for the paper bag increase in use argument. That city passed a similar plastic bag ban before Oakland passed its law last year. The San Francisco law, which was implemented last year, banned grocery chains and independents that operate stores over 10,000 square feet in size from offering single-use plastic carrier bags in those stores. The law allows the retailers' to continue to offer free paper grocery bags to shoppers.

Numerous grocers in San Francisco, such as Safeway Stores, Inc., regional chain Mollie Stone's and others, have reported paper bag use in their stores increasing dramatically since the plastic grocery bag ban law went into effect last year.

However, they also have reported a significant increase in shoppers bringing their own reusable shopping bags to the stores, along with an increase in the number of reusable bags their stores are selling since the plastic grocery bag ban went into effect.

Further, the City of San Francisco argues, and many agree, that because the city's system of curbside recycling for paper grocery bags is so simple and is available in every neighborhood in the city, over 70% of those single-use paper grocery bags are being recycled, unlike plastic grocery bags which they say end-up either in the city's landfill or littered on the streets.

Many food and grocery retailers in San Francisco also give shoppers a five cent credit for every paper grocery bag they return to the stores. Whole Foods Market stores in the city give customers a 10 cent per-bag credit for each returned paper grocery sack.

The Coalition to Support Plastic Bag Recycling didn't oppose San Francisco's ban in court for some reason. Rather, it chose to file a lawsuit against the city of Oakland's plastic bag ban law instead. The two city's laws are nearly identical expect San Francisco's bases the ban on the square footage of a grocery store (the 10,000 square feet size), while Oakland's law is based on annual store sales (the $1 million number.)

If the city of Oakland doesn't appeal the court's ruling and the injunction stays, that means the city's single-use plastic carrier bag law can't be implemented. As such, it will be interesting to see what decision the city council gives City Attorney John Russo this week.

If the coalition does win the case on appeal (if Oakland appeals), it could set a nationwide precedent regarding municipal plastic bag bans in the U.S.

We've located at least 30 cities in the U.S. that currently have proposals to ban the use of the single-use plastic carrier bags in supermarkets in their city's and towns. It's likely if the Oakland injunction holds, the coalition and other industry groups will use it as the basis of fighting similar proposed legislation in cities and counties throughout the U.S.

If the Oakland City Council decides to conduct the environmental review, the second option Russo has presented to the legislative body this week, it can use the results (if favorable to the bag ban law) in its appeal.

We will continue to follow this story for our readers.

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