Last month the Supreme Court of Texas struck down Laredo’s plastic bag ban, finding that a statewide Solid Waste statute adopted in 1993 preempts the local bag ban. This much-anticipated ruling was especially disappointing for plastic pollution reduction advocates in light of the recent National Geographic cover story, #PlanetorPlastic, which drew global attention to the issue.
This case is part of a disturbing trend of state legislatures and courts preempting local decision-making and is something that everyone should fight. There are currently eleven states with at least partial preemption in place regarding plastic bags and one of the main forces pushing for preemption is American Legislative Exchange Council (ALEC). ALEC is an organization made up of corporate members that pay an expensive membership fee for the chance help develop model legislation and speak directly with state legislators who might want to introduce their model bills. ALEC circulated model legislation preempting local plastic bag and packaging laws - essentially a ban on bag bans and fees - and laws based on that model legislation have been adopted in several states.
One positive take-away from the Texas case is the diversity of the amicus briefs submitted in favor of keeping the City of Laredo’s bag law in place. The briefs received included anglers, cattle ranchers, cotton ginners, surfers, conservationists, bass fishermen, grocers, cyclists, and other Texas cities.
Two of the Texas Supreme Court justices joined in a concurring opinion acknowledging the Solid Waste Statute preemption but calling upon the state legislature to take action to address plastic pollution. The concurring opinion cited several of the amicus briefs and quoted a block of text from the cattle rancher brief describing the potential economic impacts of plastic bag litter on the cattle industry:
These amicus briefs focused on the issue of plastic bags from a variety of perspectives. The justices ultimately felt that they were constrained to their broad reading of the word "container" to include plastic carryout bags and found preemption of Laredo's ban, but the color supplied by the briefs painted visceral real-life impacts of plastic bags in Texas.
Other cities and states would do well in forming similar unexpected alliances of a variety of groups with different specific reasons, including economic reasons, that they support reducing plastic bag consumption and litter. These alliances should be sought out from the beginning both in pushing for the adoption of plastic bag laws and in fighting to keep plastic bag laws in place.
Links to all amicus briefs in the case can be found here.