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In June 2008, the city manager of Manhattan Beach (a small, beach-front community in Southern California) issued a staff report recommending the adoption of an ordinance banning the use of "point-of-sale plastic carry-out bags" in the city. The proposed ordinance included a finding that the California Environmental Quality Act ("CEQA") did not apply because the ban would have no significant effect on the environment (14 C.C.R. Section 15061(b)(3)), and because the ban qualified as a regulatory program to protect the environment (14 C.C.R. Section 15308). The Save the Plastic Bag Coalition, which described itself as "a newly formed group of companies that will be affected by any ordinance to ban or impose fees on plastic bags," objected to the proposed ordinance. It claimed that the ban would increase the use of paper bags, with negative environmental consequences. The Coalition notified the City that it would sue if the ordinance was passed without a full CEQA review.
The city then conducted an initial study evaluating the environmental impacts of the proposed ordinance. The study noted: "Reducing the use of plastic bags in Manhattan Beach will have only a modest positive impact on the migration of plastic refuse into the ocean. However, as a coastal City the imposition of the ban is likely to have some modest impact on improving water quality and removing a potential biohazard from the marine environment." The study recognized that a switch from plastic to paper bags would have some negative environmental consequences since more energy is needed to manufacture and distribute paper bags, and more wastewater is produced in their manufacture and recycling. However, the study concluded that the impacts of a plastic bag ban would be less than that level of significance mandating an EIR. The initial study concluded that any increase in the use of paper bags in Manhattan Beach would be relatively small, with minimal impacts on energy use, air quality, water quality, vehicle traffic, and solid waste facilities. It noted that the ordinance posed no environmental threat to fish, wildlife, plant communities, historical resources, or human beings. Further, it would decrease the prevalence of plastic bag litter, both in the city itself and in the ocean. Therefore, the study recommended adoption of a negative declaration finding that the ordinance could not have a significant effect on the environment. The Coalition disagreed, and stated that a life cycle assessment would demonstrate a significant impact from the switch to paper, and therefore stated that a full EIR be conducted.
City staff reviewed various reports and concluded that a multitude of factors influenced the impact of a ban, such as that proposed for the City. Staff recommended an aggressive campaign promoting the use of reuseable bags. The ordinance was adopted, and the Coalition sued.
In Save the Plastic Bag Coalition v. City of Manhattan Beach, 52 Cal. 4th 155 (7/14/11), the California Supreme Court addressed the issues. The Court, reversing a contrary holding by an earlier Court of Appeal, held that the industry group had standing to seek a writ of mandate because entities with commercial interests were as free as natural persons to assert the public right and duty exception to the beneficial interest requirement. Environmental arguments were deemed appropriate for a citizen suit under CEQA; further, the Coalition had a beneficial interest because the ban would affect its business in the city. Although product life cycle studies which were urged by the Coalition as showing a significant impact and thus mandating an EIR be undertaken might be relevant to impacts outside the project area (that is, the City), the Court viewed any increase in paper bag usage resulting from the ordinance was uncertain and would be small; thus, the life cycle studies put forth by the Coalition did not provide substantial evidence to support a fair argument for significant effects which would mandate that an EIR be undertaken. The Court concluded that the city's negative declaration was thus sufficient, and an EIR was not required prior to adoption of the ordinance.
What the case demonstrates is that challenges to local ordinances need to keep the context of the geographic area in the forefront of any argument. The use of studies that do not take into account the unique or limited characteristics of the impacted area will not be deemed of sufficient worth as to compel an EIR.
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