On Thursday July 14, 2011 the California Supreme Court ruled that the City of Manhattan Beach does not have to complete an environmental review in order to ban retailers from providing single-use plastic bags to customers at the point of sale.
“Substantial evidence and common sense support the city’s determination that its ordinance would have no significant environmental effect,” Justice Carol Corrigan wrote for a unanimous court, which included Court of Appeal Justice Walter Croskey of this district’s Div. Three, sitting on assignment.
The high court reversed a contrary ruling by a divided panel of this district’s Div. Five. In so doing, it vindicated Justice Richard Mosk’s argument in dissent that the potential negative effects of requiring increased paper bag use were too minimal to force the city to go to the expense of completing an environmental impact report. The city passed the ordinance in July 2008, citing concern over the marine environment. It prohibits certain retailers, including grocery stores, from providing plastic bags to customers at the point of sale, but allows them to provide reusable or recyclable paper bags.
Over objections by the Save the Plastic Bag Coalition, a group of manufacturers, distributors and suppliers, the city adopted a negative declaration, rather than an EIR, under the California Environmental Quality Act. The city concluded an environmental impact report was not required after an initial study found the ban was likely to have “some modest impact on improving water quality and removing a potential biohazard” and only limited negative effects from increased paper bag use. The coalition, however, convinced Los Angeles Superior Court Judge David Yaffe, now retired, and the Court of Appeal that the potential impacts supported a fair argument that the ban would be worse for the environment than the status quo. Those impacts, the coalition argued, include greater nonrenewable energy and water consumption, greenhouse gas emissions, solid waste production and acid rain. In seeking Supreme Court review, the city argued that the coalition lacked standing, and that the lower courts were wrong on the merits.
Corrigan said the coalition had standing, both as a citizen and as a representative of directly affected businesses. A 2000 Court of Appeal case cited by the city, holding that citizen standing is less available to corporations than to individuals, was wrongly decided, the jurist concluded.
But the city is right on the merits, the justice said, because the coalition failed to demonstrate a prejudicial abuse of discretion in adopting the negative declaration.
While the overall negative impacts of manufacturing, distributing, and disposing of paper bags were amply demonstrated, Corrigan explained, it is not the role of a reviewing court under CEQA to engage in such comprehensive environmental analysis.
“When we consider the actual scale of the environmental impacts that might follow from increased paper bag use in Manhattan Beach, instead of comparing the global impacts of paper and plastic bags, it is plain the city acted within its discretion when it determined that its ban on plastic bags would have no significant effect on the environment,” the justice wrote.
A city the size of Manhattan Beach—which has fewer than 40,000 residents—is not likely to suffer significant new pollution or congestion from vehicles delivering paper bags, the justice reasoned. Nor is it likely that the number of consumers who would use paper bags—as opposed to alternatives reusable bags or recycled plastic—is so great as to significantly increase the city’s solid waste disposal burden, she said.
Corrigan acknowledged that a finding of significant environmental impact may, in an appropriate case, be based on cumulative impacts a challenged action might have in conjunction with similar actions in other localities or by the state.
Plastic bag bans, the justice noted, have been considered or enacted in San Francisco, Santa Monica, Oakland, and unincorporated Los Angeles County, among other places. (A statewide ban was proposed by then-Gov. Arnold Schwarzenegger, but rejected last year by the Legislature.)
But “Manhattan Beach is small enough that even the cumulative effects of its ordinance would be negligible,” Corrigan wrote.
The case was argued in the Supreme Court for the city and its amici—Heal the Bay, Californians Against Waste, League of California Cities, California State Association of Counties, and The Manhattan Beach Residents Association—by James G. Moose of Sacramento and Christian L. Marsh of San Francisco. San Francisco attorney Stephen L. Joseph represented the Save the Plastic Bag Coalition, which had the support of amicus Pacific Legal Foundation.
The following is a TED Talk on this subject Capt. Charles Moore on the seas of plastic