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Plastic bag litigation update

This could be a big deal.

plastic-bag

Is a plastic bag a container? Does the definition of “solid waste management” include litter control?

If a state appeals court answers yes to both of those questions, regulations on plastic bags in several Texas cities — including Austin, Fort Stockton, and Port Aransas, which ban the bags, and Brownsville, which requires businesses to charge customers a $1 fee for the bags — could be in danger.

The Fourth Court of Appeals in San Antonio heard oral arguments Tuesday in Laredo Merchants Association v. City of Laredo, in which the merchants claim the city’s ban on single-use bags is illegal because existing state law regulating solid waste disposal preempts it.

The law in question is a small piece of Texas’ Health and Safety Code. Section 361.0961, passed into law by the 1993 Solid Waste Disposal Act, says that local governments can’t adopt regulation to “prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law.” Arguments on Tuesday focused on the definitions of several phrases in the law, especially “container or package” and “solid waste management,” and what, precisely, the Legislature had intended.

The merchants’ case is the first challenge to a Texas municipality’s bag ordinance to make it to court. The Texas Retailers Association filed a suit against Austin’s bag ban in 2013 but later withdrew its petition, and Dallas repealed its bag fee after plastic bag manufacturers sued last year.

The Laredo merchants sued the city in March 2015, and appealed to the Fourth Court after the 341st Judicial District Court in Webb County sided with the city last June. A victory for the merchants could mean the overturning of local bag regulations across the state, while a win for Laredo could encourage other cities to pass regulations of their own.

[…]

On its face, the case is a fight over flimsy pieces of plastic. But the series of amicus briefs filed on each side establish that a much weightier issue is at stake: How much power do local governments have to establish regulations that affect commerce? Three Texas state senators and 17 state representatives, all Republicans, filed an amicus brief last week in support of the merchants, arguing, like the Texas Public Policy Foundation, that state law preempts the bag ban. The Texas Municipal League filed a brief in support of the city. Executive director Bennett Sandlin told the Tribune that the bag issue is one where local control is particularly important because different cities have different environmental concerns; Fort Stockton, for example, cited cattle deaths from ingesting plastic as a reason for the bag ban.

The implications of the local control dispute go beyond plastic bags and extend to ridesharing, energy, rent control, and other areas where municipalities have sought to pass stringent regulations. Last May, Gov. Greg Abbott signed into law House Bill 40, which limited local regulation of drilling activities after Denton voted to ban hydraulic fracking in the city. Recently, legislators have vowed to address local rules on ridesharing companies like Uber and Lyft.

“We’ve got a Legislature that used to believe in local control and now, some of them, all they believe is control of the locals,” Sandlin said. “We’re facing it not just in plastic bags but any number of issues.”

You can say that again. I’ve blogged a bunch about plastic bags, but this lawsuit had escaped my notice till now. I fully expect the issue to be on the agenda for the Lege in 2017 no matter what happens here. It’s not that Texas Republicans love regulating individual behavior, it’s that they do not recognize as legitimate any form of governance that does things they don’t approve of. They sue the feds, and now the cities are squarely in their sights. Look at the words of two-bit authoritarians like Sen. Don Huffines, who was quoted again in this story, and ask yourself whatever happened to the Republican brand of “small government”. Whatever else these guys are now, that ain’t it.

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