In an unpublished opinion, the First District Court of Appeal has rejected an attack on San Francisco's single-use plastic-bag ban, saying that the city did not violate the California Environmental Quality Act and that local plastic-bag bans are not overridden by the state's Retail Food Code.
San Francisco adopted a single-use plastic-bag ban in 2012. The city concluded that the plastic-bag ban was categorically exempt from CEQA under 15307 and 15308 of the CEQA Guidelines, saying that the plastic-bag ban would have a net positive impact on the environment.
The city was quickly sued by the Save The Plastic Bag Coalition, which has challenged plastic-bag ordinances around the state. The Coalition argued that the plastic-bag ban should not fall under the categorical exemption because life-cycle studies show that plastic bags are not as harmful to the environment as paper bags. The Coalition also argued that plastic-bag ordinances should be pre-empted by the state's Retail Food Code, which occupies the field of health and sanitation regulation.
The First District did not buy the Coalition's arguments – and, in the case of the CEQA argument, was not persuaded by the Coalition's approach given the outcome of previous cases. In arguing that the plastic-bag ban should not be categorically exempt, the Coalition relied on the California Supreme Court's ruling in Save the Plastic Bag Coalition v. City of Manhattan Beach 52 Cal.4th 155 (2011).
The Coalition's argument relied heavily on the Supreme Court's statement in a footnote which noted that the plaintiff – the Coalition itself – argued that a plastic-bag ban required "comprehensive environmental review". In the San Francisco case, the Coalition concluded that "comprehensive environmental review" precluded the use of a categorical exemption.
"In the present case," the First District wrote, "the Coalition's reliance on Manhattan Beach is perplexing. The fact that the city of Manhattan Beach was able to enact its plastic bag ban without preparing an EIR certainly does not strengthen the Coalition's position here. Furthermore, we find nothing in that opinion which supports the Coalition's specific contention that the City cannot rely on a categorical exemption in this case because it is larger than the city of Manhattan Beach. Indeed, Manhattan Beach was not a categorical exemption case at all; during the second step of its CEQA inquiry the city conducted an initial review which resulted in a negative declaration."
The Coalition also argued that the Supreme Court upheld Manhattan Beach's plastic-bag ban partly because Manhattan Beach was such a small city and the impact of its ban on the global environment would be minimal – the implication being that a ban in a larger city would be prohibited. But the First District didn't bite. Indeed, the appellate court seemed somewhat miffed that the Coalition used the exact same arguments about life-cycle impacts in the San Francisco case that the Supreme Court had rejected in the Manhattan Beach case.
The First District also noted that the San Francisco case was essentially the same case the court had already decided earlier this year in Save the Plastic Bag Coalition v. County of Marin, 218 Cal.App.4th 209 (2013).
As for the Retail Food Code, the Coalition argued that because that state law pre-empts local regulation on health and sanitation of single-use carry-out items (plastic utensils and paper plates, for example), it also pre-empts a local plastic bag ban. Again the First District was not sympathetic. It affirmed the Superior Court's judgment that the plastic-bag ban is a regulation focused on environmental issues, not health and sanitation issues.
The Case: SAVE THE PLASTIC BAG COALITION, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants and Respondents. A137056 (December 10, 2013).
