City's Plastic Bag Ban Faces More Delays

Photo: A plastic bag lies on a Berkeley sidewalk. The city's prospective plastic bag ban has faced large delays in order to avoid a lawsuit.
Michael Restrepo/Photo
A plastic bag lies on a Berkeley sidewalk. The city's prospective plastic bag ban has faced large delays in order to avoid a lawsuit.

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Choosing "paper or plastic" just got a lot harder for the city of Berkeley.

A ban on plastic bags will not be approved anytime this year, city officials said this week. What originally appeared to be a simple way for the city to become more "green" has become increasingly complicated over the last five years, as some environmentalists question the benefits of using paper over plastic, and opponents of the ban look to stall progress through a number of lawsuits.

Now, to avoid such a lawsuit, the city will wait until a county-wide report documenting the effects the ban would have on the environment and community - an Environmental Impact Report - is completed at the end of this year, county officials said.

"It keeps getting delayed and delayed and delayed, and in the mean time, there are all these other cities adopting them," said Berkeley Councilmember Kriss Worthington. "It's not the end of the world to wait another year, but it's frustrating."

When nearby San Francisco was the first city in the nation to ban plastic bags in 2007, it seemed only appropriate for Berkeley, known as a progressive city, to jump on the bandwagon.

But as cities and counties around the state began to consider and adopt similar ordinances - even the Whole Foods Market grocery store chain banned plastic bags in 2008 - many were threatened with lawsuits, and some began to question whether the alternative, paper bags, are truly better for the environment.

The Save the Plastic Bag coalition has filed lawsuits against several cities that adopted plastic bag ban ordinances without completing an EIR, required by the California Environmental Quality Act, on the grounds that a report is necessary to pass a law banning plastic bags to illustrate potential problems with paper bags as well. In fact, the city of Oakland's ordinance was overturned after the coalition filed a lawsuit against the city in 2008.

The American Chemistry Council, a group that represents chemical manufacturers around the nation, has also challenged many bans, suggesting that plastic bags be recycled instead.

"Plastic bag bans threaten well-paying manufacturing jobs, saddle consumers with burdensome new grocery costs and threaten existing recycling infrastructure," Tim Shestek, senior director of state affairs for the organization, said in an e-mail. "(The American Chemistry Council) believes there are better and more consumer-friendly ways to reduce litter."

But Carol Misseldine, director of Green Cities California, a coalition supporting the adoption of environmentally progressive initiatives, said that plastic bag usage must be reduced - in California, 19 billion single-use plastic bags are used a year, amounting to about 600 per second, she added.

"I think it's really obvious that (the American Chemistry Council's) real issue is that they don't want to cut into their market share," she said. "They make plastic bags."

Most cities acknowledge the detrimental effects of both plastic and paper bags - the former for litter and marine pollution and the latter for green house gas emissions - and are now creating what Misseldine called "second-generation" ordinances, which include a fee for paper bags as well. But even these bans can come under fire if completed without an EIR.

Berkeley is taking what she called a "cautious" approach - waiting for an EIR before proceeding with an ordinance to avoid a lawsuit.

According to Debra Kauffman, a senior program manager at StopWaste.org, the regional organization that is facilitating the county EIR, the report that cities will use to weigh the value of their own bans should be completed by November.

"I can definitely see why cities are doing it - it's the safest route," Misseldine said. "On the other hand, I'm very grateful to those jurisdictions that are moving forward anyhow."

The city of Manhattan Beach, for example, is currently fighting a lawsuit from the Save the Bag Coalition after the city did not file an EIR. The case made its way up to the state supreme court. A decision is forthcoming.

While many are waiting for the potentially precedent-setting verdict of the case against Manhattan Beach, the Board of Supervisors for unincorporated parts of Marin County passed a ban on plastic bags Tuesday to take effect early next year, which includes a 5 cent charge on paper bags - all without conducting an EIR and instead claiming a categorical exemption, according to David Zaltsman, deputy county counsel for Marin County.

"It costs a lot of money, it takes longer, it's legally inappropriate," he said. "The plastic bag manufacturers have been attempting to pull the local jurisdictions to delay their ordinances by doing unnecessary EIRs."

Councilmember Jesse Arreguin said he would have preferred Berkeley to take a similar approach.

"Berkeley has a reputation in being a leader in environmental issues, and if we can move forward soon in passing an ordinance, we can continue our leadership," he said.

But a categorical exemption can only apply when the environmental impact is indisputably good, so attempts at exemption have been questioned. The county has already been threatened with lawsuits from the Save the Plastic Bag Coalition, according to Zaltsman.

Although he would prefer the law was passed sooner, Arreguin said that by proceeding cautiously, the city's ban will be legally defensible and easy to uphold.

"It's not a delay," said Mary-Kay Clunies Ross, spokesperson for the city of Berkeley. "It's more a question about approach than anything else."

She added that completing an EIR for just the city is expensive and time-consuming and that the city had previously looked to the state to ban the bags but that a proposal was rejected in the state senate late last year.

Both the city of San Jose and the county of Los Angeles recently approved the bans, with a "green" charge on paper bags, but both waited and completed EIRs after being threatened with lawsuits.

"Everyone agrees that we want to proceed ... we want to do it in a way that when it's enacted, it's upheld and doesn't cost the city a lot of lawsuits," said Councilmember Gordon Wozniak. "It's going to happen."

Tags: ALAMEDA COUNTY, BERKELEY CITY COUNCIL, SAVE THE BAY, ZERO WASTE COMMISSION, STOPWASTE.ORG, SAVE THE PLASTIC BAG COALITION


Soumya Karlamangla is the lead environment reporter. Contact her at [email protected]



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