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Laredo plastic bag ban overturned

Ugh.

plastic-bag

The Fourth Court of Appeals on Wednesday sided with merchants and free-market groups who argued that Laredo’s ban on single-use bags is illegal because it is pre-empted by state law regulating solid waste disposal.

The 2-1 ruling overturned a lower court’s decision, the latest setback for environmentalists and advocates of local control in Texas.

Laredo, which estimates it once went through some 120 million plastic bags each year, is among several Texas cities — including Austin, Fort Stockton and Port Aransas — that have sought to regulate them to reduce waste.

The city argued that its ban was designed to beautify the city and reduce clogs in storm drains, not to manage solid waste as barred by the state law.

The lawsuit, filed by the Laredo Merchants Association, was the first challenge to such a ban to be heard in court. And it triggered briefs from 20 Texas lawmakers, a prominent free-market group and the Texas Municipal League — who squabbled over cities’ power to regulate commerce.

Wednesday’s ruling only affects Laredo’s ordinance for now, but it gives legal momentum to bag ban opponents elsewhere.

[…]

The state law in question is a small piece of Texas’ Health and Safety Code. Local governments, it says, can’t adopt a 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.”

Laredo contended that its bag ban’s purpose — “prevention of litter” — did not fall within the “management purposes” barred under the law.

The appeals court disagreed.

“The Ordinance does exactly what the Act intends to prevent — regulate the sale or use of plastic bags for solid waste management purposes,” Justice Marialyn Barnard wrote for the majority.

See here for the background. I’m sorry, I know I’m not a lawyer, but this is a ridiculous reading of the law. You can see here for the bill in question, and see here for its text. I’d bet you a dollar right now that if you tracked down the key people on that bill – author, sponsor, and conference committee members – none of them would claim it was their intent to forbid cities from banning or taxing plastic bags. The idea never would have occurred to them. It just boggles my mind that people who claim to be “conservatives”, who claim to decry “judicial activism”, who claim to oppose “big government meddling”, could view this as a victory for their principles. Do we want the Legislature to set the solid waste pickup schedules for cities like Laredo, too? I don’t get this at all. But here we are, and far too many of our Republican legislative overlords can’t wait to get to Austin in January and pass bills to do more things like this. This is where we are these days.

By the way, to continue with my hobby horse about the appeals courts and the opportunity that this year’s election provides: That 2-1 decision? The two are both Republicans, and the one is a Democrat. Now, there’s nothing that would keep the Supreme Court from overruling a 2-1 decision that had gone the other way, but still. This is what I’m talking about.

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7 Comments

  1. Bill Daniels says:

    While I can envision the benefits of the “bag ban,” it’s just another example of punishing everyone for the misdeeds of a few. I use the “single use” plastic bags as trash can liners and, because I recycle and am not a big consumer anyway, usually end up with 2-4 small grocery bags of trash at the curb each trash day. They work well for other purposes, too, and I doubt I am the only person who not only doesn’t “set them free” to pollute the environment, but helps them find a second, productive use.

    The problem, as seen around Houston and other cities is, we have cultures here that see absolutely nothing wrong with littering and dumping. Instead of trying to educate, prosecute, and change those cultures to stop the littering, the bag ban cities have chosen the, “well then, nobody can use plastic bags” solution. That’s not fair to those of us who choose NOT to be careless with them.

    Instead of trying to change the culture (because all cultures have value and are to be respected), cities will just “ban the bag.” Perfect.

    Looks like the appeals court got it right.

  2. Small Government Republican says:

    I’m responsible when I drink and drive. I don’t see why I should have to be punished just because of the misdeeds of a few.

  3. Small Government Republican says:

    P.S. I’m also for local control, except when I’m not.

  4. Jen says:

    Yes Bill, there is a culture that thinks dumping is no big deal, and littering our neighborhoods with noxious fumes and cast off barrels of poisonous crud is just fine. I’m talking about the Republican politicians that run Texas and their white trash allies the Libertarians. Got dirty process solvent? Dump it out in the back. Toxic refinery gas? Wait til the seabreeze picks up and open the vent. Bad batch of paint? Pour it in the ditch, nature will take care of it. Businesses make more money when they can pollute freely and the taxpayers have to pay to clean up their mess, and that is the Texas that Dan Patrick and his crew wants. Ending local regulation of environmental problems is part of the plan.
    Bag bans work, they don’t cause hardship for anyone but the bag manufacturers and their lobbyists, and they save livestock and wildlife. Surely you can pay 12 cents a week to buy a trash bag. You will probably save more than that at the store when they no longer have to buy bags for you.

  5. Bill Daniels says:

    @Jen:

    Not sure where you got the idea that refineries, paint companies and other industrial businesses have free reign to pollute at will. I am a contractor, so I have worked in many plants and industrial settings. The rules for disposing of waste is so onerous that if, for example, I wanted to remove dirt from an office flower bed and dispose of it offsite as waste, I’d have to submit that dirt for soil testing to prove it isn’t contaminated first. No one is dumping stuff down storm drains in the middle of the night, and if they are, it isn’t legal, and is probably an unscrupulous fly by night contractor. Look around Houston. When’s the last time you saw barrels of toxic ooze leaking in a ditch somewhere? Never sound about right?

    What you do see, in addition to the plastic bags, are drink cans and bottles, fast food wrappers, cigarette butts, dirty diapers, old couches, household detritus, household and commercial construction debris, etc., all dumped by certain cultures of people that are NOT industrial plant managers, or for that matter, people like me who dispose of our waste responsibly.

    Look at what is out there, clogging up our roadside ditches and bayous, then look at who is getting caught dumping that stuff, and I think you will have a pretty clear picture of what is actually going on. Do you think Exxon sunk hundreds of cars in Houston’s bayous? Did Oxychem dump couches all over the city, or airdrop millions of plastic bags here? Think about it.

  6. Jen says:

    Dan Patrick and his buddies want to make it legal to pollute at will. What was that agency Rick Perry wanted to eliminate? Ted Cruz too? Oh yeah that was the Environmental Protection Agency. That will be super good for those raising kids here, and people just trying to breathe.
    CES in southeast Houston has many barrels of leaking toxics. Refineries are emitting tons of carcinogenic benzene on a regular basis. That is just a sample of the business Utopia of zero regulation that the Lt. Gov. and Sen Cruz are pushing.

  7. Bill Daniels says:

    @Jen:

    CES, over off Griggs Rd., was shut down by the government because they did in fact violate pollution laws. You and I would find agreement that there needs to be laws regarding pollution. Where we probably disagree, though, is exactly how stringent those laws need to be. Yes, we all want clean air and water, but at this point, our industries are already heavily regulated. When we pass new and even more stringent laws, we face the law of diminishing returns. We ask industry to spend much more money chasing much smaller returns in clean air/water. Meanwhile, our overseas competition like China and Mexico have no where near the standards we have, so we are at a competitive disadvantage, and we lose jobs to those countries.

    The really ironic thing about all this is, when you push industry overseas because of burdensome regulation, you don’t make the planet any cleaner. In fact, you make it worse, because the factory in the 3rd world that replaces the one here isn’t concerned about pollution controls at all.

    I’m not a Dan Patrick fan at all, but tell me, what legislation has he promoted that would actually roll back any environmental pollution law? He, like Trump favors no NEW regulation, but I haven’t seen anything from Abbot or Patrick about actually rolling back any current law in that area.

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