COURTS:

Plastic bag decision sets CEQA precedent

The California Supreme Court last month ruled that private citizens and corporations alike can bring suit under the California Environmental Quality Act, addressing the standard for invoking the law in the most comprehensive manner since its inception.

The July 14 decision upheld a 2008 proposal to ban single-use plastic bags in Manhattan Beach, in Los Angeles County, but more broadly, it addressed the "standing issue," or which groups and people are allowed to use the state's pre-eminent environmental law.

The Save the Plastic Bag Coalition, made up of about a dozen plastic bag manufacturers, distributors and retailers, had argued that the town's ban would degrade the environment by forcing people to switch to paper bags, which they claim take more energy to produce than plastic bags.

In her opinion, Justice Carol Corrigan quickly dismissed the group's arguments, finding that Manhattan Beach's population of 34,000 is too small to require an analysis of the environmental effects of switching from plastic to paper, regardless of which material is more damaging.

But she also reversed previous policy on CEQA standing, rejecting a 2000 decision requiring corporations to routinely meet a higher standard than citizens. "Absent compelling policy reasons to the contrary, it would seem that corporate entities should be as free as natural persons to litigate in the public interest," she wrote. "Corporate purposes are not necessarily antithetical to the public interest."

Some groups had hoped the decision would be narrower, said Rick Frank, director of the California Environmental Law and Policy Center at the University of California, Davis.

"It basically said they would keep the courthouse door open to one and all," Frank said. "Environmentalists and some business interests were hoping [the court] might construe it to be more limited."

CEQA, which took effect in 1970, is broader than the federal National Environmental Policy Act, which passed in 1969. Under California law, any project that requires state or local approval must have an "environmental impact report" that analyzes effects and proposes alternatives or ways to mitigate the damage. NEPA applies only to projects that need federal agency approval or use federal funding.

The California law's utility crosses political borders: While developers often decry environmentalists' bringing suit under CEQA to block proposed projects for their impact on plants or animals, businesses or labor unions can also wield it to enforce environmental laws against their competitors.

Until now, the most prominent case that determined who could bring suit under CEQA was Waste Management of Alameda County Inc. v. County of Alameda, which the state Court of Appeal decided in 2000. It ruled that Waste Management did not have standing to invoke CEQA against a competitor because it had argued from a commercial rather than an environmental standpoint. The decision set out a "zone of interests" that a plaintiff must fall into to bring suit.

Under last month's decision, anyone can sue using CEQA -- plaintiffs do not have to be directly affected by a project's environmental consequences.

Implications for other bag bans

The ruling on the bag ban is a rare one that pleased both sides. "We are delighted with the decision," said Save the Plastic Bag Coalition counsel Stephen Joseph.

"[Environmental impact reports] bring in the science and say, 'Right, do we have evidence of this claim?'" he said. "That's all we want, informed decisionmaking."

"We are ecstatic," Manhattan Beach Mayor Richard Montgomery said in a statement. The ban is set to go into effect in January 2012, following consultations with local businesses, City Manager David Carmany said.

Environmental groups are interpreting the ruling to mean that local governments, at least, can move forward with bans unimpeded. Corrigan wrote that a larger jurisdiction might trigger a different decision, saying that "the movement to ban plastic bags is a broad one, active at levels of government where an appropriately comprehensive environmental review will be required."

In addition to Manhattan Beach, bans are pending in Monterey, Oakland, Sunnyvale and a half-dozen other cities, according to the group Californians Against Waste (CAW). Long Beach just imposed its ban in large food stores yesterday (E&ENews PM, Aug. 1).

Given Corrigan's nuanced decision, larger governments with pending bans like Alameda County and Santa Cruz County might be well-advised to carry out an environmental impact report to forestall lawsuits, said Mark Murray, CAW's executive director.

"I think it's basically full steam ahead for local governments," he said. Larger jurisdictions have been considering charging 5 to 25 cents on other single-use bags to discourage wholesale switching to paper bags and their attendant environmental issues, he said.

"It's probably fair to characterize the decision as implying that the plastic-vs.-paper debate is somewhat closer than some anti-plastic folks have previously argued," Frank said, "close enough that a full EIR might be required to address the issue in detail if a more populous jurisdiction were to adopt a plastic bag ban in the future."

Want to read more stories like this?

E&E is the leading source for comprehensive, daily coverage of environmental and energy politics and policy.

Click here to start a free trial to E&E -- the best way to track policy and markets.

Latest Selected Headlines

More headlines&nbspMore headlines

More headlines&nbspMore headlines

More headlines&nbspMore headlines

More headlines&nbspMore headlines

Latest E&ETV Videos