LAUREN TAYMOR – SOLVING THE PLASTIC PROBLEM

Solving The Plastic Problem

Plastic Bag Bans and Taxes

In the past few years many city, state, and federal governments have begun to implement single-use plastic bag bans or taxes to combat the growing litter and environmental degradation problems caused by their use. These are two different types of environmental regulation: bans are an ordinance used to stop environmental degradation whereas taxes are a market mechanism used to shift consumer behavior and ultimately stop environmental degradation. Proponents of the bans and taxes include environmentalists, city officials, and concerned citizens. Opponents of the bans and taxes are mostly plastic bag manufacturers and some retailers. Although both forms of regulation have been proven to be successful, plastic bag taxes can minimize opposition, create an easier transition, and teach rather than force consumers to be more conscientious. This paper will use several different case studies to explore the various issues with implementing bag bans or taxes including jurisdiction issues and litigation.

Why are plastic bags bad?

The most significant negative impacts of plastic bags are environmental impacts from their manufacture and disposal. However there are significant economic impacts as well. Plastic bags require a lot of oil or natural gas byproduct to produce. Approximately 12 million barrels of oil are used to make plastic bags in the United States annuallyi. Oil is a limited resource that the U.S. is trying to wean itself from.

According to the Ocean Conservancy, plastic bags are among the top two items of debris found on beachesii. Plastic bags do not biodegrade but they will break down into smaller pieces, which are often mistaken as food by marine life and end up in our food chainiii. There are two garbage patches in the Pacific. A garbage patch is a concentration of debris in the ocean. Critics

of plastic bag bans will say that the garbage patch is a myth because it cannot be seen on Google Earth. However, most of the debris in the garbage patches is small pieces of floatable plastic which are not visible by satellite.iv  Litter is a huge problem, both on the streets and in the ocean. Those plastic bags that don’t end up as litter, end up in landfills. Opponents of bans cite the fact that plastic bags only make up 2% of landfills, however, this is because they are light and extremely compressiblev. They still make a significant contribution.

Not only does plastic not belong in the ocean but it also has a deadly impact on marine life. For example, a quarter of albatross chicks die each year on Midway Atoll in the Pacific due to plastic consumption.  Adult albatrosses mistake plastics floating in the ocean for food and bring it back to the chicks who end up dying from dehydration or starvation.vi  Other species are similarly affected. In addition to having negative impacts on marine life, when animals consume plastics bioaccumulation occurs and they end up in the human food chain.

There are economic consequences as well. Many cities in California estimate between $20 and $25 million annually to clean up litter from plastic bagsvii. Statewide the costs could be around $300 to $400 million annually for litter clean up and damage to sewer systemsviii. The cost of cleaning up plastic bags is passed onto the consumer, unbeknownst to them, as a tax.

The combined impacts of adding microscopic pieces of debris to our land and water, killing marine creatures, impacting human food chains, adding to landfills and costing hundreds of millions of dollars annually in California alone for waste clean up are sufficient to warrant eliminating or at least minimizing plastic bags. The costs outweigh the value.

What can we do to reduce the problem?

There are many options for reducing environmental damage from plastic bags. The plastic bag industry advocates for recycling of plastic bags while many environmentalists call for plastic bag bans or taxes. Recycling is not a very effective mitigation tactic because most bags are not recycled. In California, less than 5% of plastic bags are recycledix. Californians alone use approximately 12 billion plastic bags per yearx. About 11,400,000,000 of these are not recycled each year.

Plastic bag bans, where implemented correctly, have proven to be very successful. Bans prohibit all stores (of the types defined in the specific ordinance) from giving out single-use plastic bags. These bans are often accompanied with a small fee or tax for paper bags so that consumers do not simply switch to paper which has many environmental impacts as well. Plastic bag taxes (or fees since the word tax is very unpopular) are a slightly less common but potentially more effective way to reduce plastic bag consumption. Plastic bag bans or taxes can be implemented at any government level ranging from citywide to countrywide policies.

Case Study: San Francisco

San Francisco became the first city in the United States to implement a plastic bag ban in 2007xi. In February of 2012 San Francisco expanded the ban from large grocery stores and pharmacies to include restaurants and take-out food places and added a 10-cent bag tax for paper and compostable plastic single-use bagsxii.

Save The Plastic Bag Coalition (“The Coalition”) sued San Francisco, as well as several other cities, for not preparing an Environmental Impact Report (“EIR”). Their suit against San Francisco was rejected by the San Francisco Superior Court. They are appealing that decision relying in part on Save The Plastic Bag vs. City of Manhattan Beach. The decision in the Manhattan Beach case was that Manhattan Beach was not required to complete an EIR but that “the analysis would be different for a ban on plastics bags by a larger government body, which might precipitate a significant increase in paper bag consumption” (Id. 52 Cal.4th at 174)xiii.

The San Francisco Planning Department determined that the Checkout Bag Ordinance was categorically exempt from CEQA review under Class 7 and Class 8 exemptions. Class 7 consists of actions taken by regulatory agencies as authorized by state law or local ordinance to assure the maintenance, restoration, or enhancement of the natural resource where the regulatory process involves procedures for the protection of the environment.

Class 8 consists of actions taken by regulatory agencies, as authorized by state or local ordinance, to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment.xiv

The Coalition made three arguments for why San Francisco’s Checkout Bag Ordinance is not exempt from conducting an EIR under CEQA. They are that: 1) the San Francisco Board of Supervisors is not a “regulatory agency”, 2) the single-use bag fee is a mitigation tactic and should not be included in evaluating whether exemptions apply, and 3) The Coalition presented a fair argument of the considerable negative environmental effects of the ordinance. Precedent against these arguments can be found in several previous court cases. The most similar court  case that applies to all of these arguments is Save the Plastic Bag Coalition v. County of Marin,  et al. The Marin County Superior Court upheld that Class 7 and Class 8 exemptions were allowable for the Marin County Board of Supervisors on Marin’s plastic bag ban. In addition, the Court of Appeals in Kings County ruled that the Board of Supervisors could use a Class 8 exemption for an ordinance prohibiting the dumping of sewage sludge on agricultural land

(Magan v. County of Kings, 105 CalApp.4th 468 (2002))xv.

The Coalition also argued that the 10-cent single-use bag charge should not be considered when evaluating whether the exemption applies because the fee is a mitigation measure. This argument is invalidated by the fact that the charge is an important aspect of the ordinance and  “the whole of an action” must be analyzed (CEQA Guidelines §15378(a)). Once again the decision that Marin County’s 5-cent bag charge supports the categorical exemption (Save the Plastic Bag Coalition v. County of Marin, et al) serves as precedent.xvi

Furthermore, The Coalition’s claims that the ordinance would have adverse environmental effects lacked substantial evidence. Substantial evidence is defined as “fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact” (Hines v. Cal. Coastal Commission, 186 Cal.App4th 830,856-57 (2010))xvii. The Coalition’s arguments were as follows: “(1) single-use paper and compostable bags are worse for the environment than single-use plastic bags; (2) reusable bags have negative impacts; (3) people may stop recycling; (4) the Ordinance may increase litter and dog waste on sidewalks; and (5) the 10-cent charge may not be sufficient to discourage single-use bag use”xviii. The Coalition failed to support their arguments with substantial evidence, as they did in Marin County, where the Superior Court rejected the arguments made by The Coalition about adverse environmental effects. In fact there is evidence to the contrary of many of their arguments. For example, that single-use bag fees have been proven to significantly reduce consumption.

The Coalition is also challenging the Superior Court’s decision that “the city could ban plastic bags at restaurants and other food facilities notwithstanding the express preemption section of the California Retail Food Code”xix. The Coalition is trying to argue that paper bags are not appropriate for carrying hot items and that reusable bags are unsanitary to use at restaurantsxx.

The California Retail Food Code’s purpose is “to safeguard public health and provide consumers food that is safe, unadulterated, and honestly presented” (H&S Code § 113703)xxi. The Health and Safety Code states that:

It is the intent of the Legislature to occupy the whole field of health and sanitation standards for retail food facilities, and the standards set forth in this part and regulations adopted pursuant to this part shall be exclusive of all local health and sanitation standards relating to retail food facilities (H&S Code § 113705)xxii

The defense against the California Retail Food Code argument is that the Checkout Bag Ordinance does not establish “health and sanitation standards for retail food facilities”xxiii; it is strictly a regulation designed to protect the environment.

As stated above, the 2012 San Francisco Superior Court decision is on appeal and the Appellate decision will set precedent for future bag bans.

Case Study: Los Angeles County vs. Alameda County

Both Los Angeles County and Alameda County have implemented plastic bag bans. The main difference between the ordinances in Alameda County and Los Angeles County is that Alameda’s includes the fourteen incorporated cities as well as the unincorporated areasxxiv. Los Angeles’ ban is limited to the unincorporated areas even though some cities have adopted their own bans.

In Alameda County, the ordinance went into effect January 1, 2013. It was enacted by the Alameda County Waste Management Authority, which “has the power to enact this ordinance pursuant to the Joint Exercise Powers Agreement for Waste Management”. It applies to all grocery stores, pharmacies, supermarkets, convenience food stores, foodmarts, and liquor stores.xxv

The Los Angeles County plastic bag ban includes single-use plastic carryout bags in unincorporated areas of the County. This means that the majority of Los Angeles is not subject to the county ban though some areas are subject to citywide bans. The cities within Los Angeles County that have bag bans are Calabasas, Glendale, Long Beach, Malibu, Manhattan Beach, Pasadena, Santa Monica, and West Hollywoodxxvi. The ban was implemented on July 1, 2011 for supermarkets and large retail stores with a pharmacy. In January 2012, the ban expanded to include smaller grocery stores, pharmacies, convenience stores and food marts.xxvii

Both Los Angeles County and Alameda County defined reusable bags in their ordinances. The key characteristics of a reusable bag are that it has a minimum lifetime of 125 uses, is machine washable or made from another cleanable material, and does not contain any lead, cadmium, or ay other heavy metal in toxic amounts.xxviii

The Alameda County ban includes exemptions for take-out food and drinks, public eating establishments, nonprofit charitable reuse organizations and bulk food, produce, and meatxxix. The Los Angles County ban also exempts produce or product bags. There are also exemptions for people on welfare in both ordinances. To discourage customers from simply switching to paper bags, a 10-cent fee is charged for paper bags in both countiesxxx.

The Los Angeles ban clearly prohibits stores from reimbursing or rebating customers the cost of the paper bags. The fees from paper bags are designated for compliance costs and the actual cost of providing recyclable paper bags or educational materials. Stores are highly encouraged to provide educational pamphlets and signage to spread awareness about the new ordinance and the reasoning behind itxxxi.

Los Angeles’ ban was able to prevent the use of 2.2 million plastic bags annually but it caused some economic consequences due to the nature of its regulationsxxxii. Since the ban only covers unincorporated areas, many people choose to go to stores in the incorporated areas that do give out plastic bags. The ban/no ban areas are very intermixed and so it is quite easy to substitute a store in an unincorporated area for one in a nearby incorporated area. Four-fifths of stores in unincorporated areas reported an average decrease in sales of -5.7%xxxiii. The drop of sales can be linked to the fact that the ban was not widespread. If the incorporated areas had a ban as well people would continue to shop at the same stores. Another concern with bag bans is that it will increase the usage of paper bags. However with the 10-cent tax for paper bags, paper bag usage has actually declined in Los Angeles County by 94%xxxiv

Alameda County has had a lot success implementing their bag ban in the unincorporated and incorporated parts of the city. Since the ban is in effect throughout all of Alameda County there has not been an issue of patronage shifting to unincorporated areas. There have been mixed reactions to the ban amongst citizens in Alameda County. Some customers have been upset and one liquor storeowner cited a loss of $25 to $30 on January 1 when the ban went into effectxxxv. For others the ban and fee is doing exactly what it should: changing public opinion and habits. One West Oakland resident doesn’t mind the ban and fee: “If you got to pay for it, then you should know it ain’t good”xxxvi. This is in essence the idea behind bag taxes as opposed to bans.

Case Study: Ireland

Ireland is an incredibly interesting case study because they have implemented a countrywide plastic bag tax. A 33 US cent tax was passed in 2002 for all plastic bags. Combined with an advertising awareness campaign, the tax led to a 94% drop in plastic bag use within weeks.xxxvii  The tax has eradicated the plastic bags that littered Ireland’s countryside.

Frank Convery, the head of Ireland’s environmental information service, commented on the effectiveness of the tax: “You’d be driving in the Irish countryside and the sides of the road were covered in plastic – when the foliage dropped off in the fall what was left on the branches was a bunch of old plastic bags waving in the wind. That’s gone and people love it”xxxviii.

That’s not to say there wasn’t any opposition to the tax. Most of the opposition came from storeowners who worried it would drive customers awayxxxix. This is the reason why bans and taxes are most effective on a countrywide or at least statewide level. If the tax is everywhere, the consumer will not be driven to shop at other stores. There was not a lot of opposition from the plastic bag industry because there are no plastic bag makers in Ireland; most are imported from Chinaxl. A study published in the Environmental Resources and Economics journal found that retailers were mostly positive or neutral towards the bag tax because of the savings from having to purchase fewer plastic bagsxli.

The bag tax has been wildly successful in Ireland. Not only has it caused a 94% reduction in plastic bag use but it also changed the way people think. Vincent Cobb, founder of reuseit.com, explained the necessary change in attitudes: “Using cloth bags has been seen as an extreme act of a crazed environmentalist. We want it to be seen as something a smart progressive person would carry”xlii. That is exactly what has happened in Ireland. Within a year of implementing the tax, almost everyone in Ireland started using reusable cloth bags. Plastic bags became socially unacceptable and uncoolxliii.

Bag Tax versus Bag Ban

Although arguments can be made for both sides of the argument, bag taxes do a better job of changing the culture around shopping and are a gentler way of creating a positive change.

Bans cause a lot more opposition because consumers do not like to be forced to change their habits. A tax encourages but doesn’t force change. A tax requires the consumer to be accountable for the environmental externalities of plastic bag consumption. If anyone objects to the extra fee, it is easily avoidable by bringing reusable bags.

Fees are more practical than bag bans because they allow for gradual change in habits and therefore cause less inconvenience to customers. Many critics of bag bans cite the need for plastic bags for other uses (such as garbage bags or picking up after pets, though these needs could also be met with compostable bags) and bag taxes or fees allow the customers to still have plastic bags when needed. Plastic bag taxes have been proven to be very effective with an 80% reduction in the number of plastic bags distributed in Washington DC,xliv an 85% reduction in Montgomery Countyxlv and a 94% reduction in Ireland.

Overcoming Opposition to Bans

Most of the opposition to plastic bag bans comes, not surprisingly, from the plastic bag industry. One of the more creative arguments against bans is the tourism industry. Critics fear that bag bans will hurt the tourism industry because tourists will be less likely to buy things if they cannot have a plastic bag to take with them. Critics say that it is unlikely that tourists would bring their own bags and if they did end up buying a reusable bag it would most likely be thrown away at the end of the tourist’s stay.xlvi  This is another example of why bag taxes are a more effective policy. Although the price would be a little bit more, tourists would still be able to get a plastic bag for their goods. Tourists are generally expecting to spend a little more than normal when they are on vacation so the bag tax would be unlikely to alter their shopping habits. It may however encourage them to combine items into one bag rather than getting a separate bag for each store they frequent. Opponents of bag bans and taxes say they will hurt businesses and consumersxlvii.

However, Los Angeles County estimated that the overall annual cost to consumers from bag bans is $5.72 or a little more than a Grande latte at Starbucksxlviii. Given that most bans include exemptions for low-income customers, this cost is insignificant. In terms of taxes, the customer can opt out of this fee by choosing to use reusable bags.

A big argument against plastic bag bans is that the environmental harm from plastic bags is not as large as environmentalists make it out to be. As mentioned earlier, opponents tend to cite the fact that the Pacific garbage patch is not visible by satellite. This is because the plastic has broken down into smaller, more harmful pieces. One opponent argues that organic waste makes up a lot more of the waste stream in California than plasticxlix. While this may be true, organic waste will decompose and poses far less of an environmental risk than plastic which never breaks down.

Some people are concerned with job loss from the plastic bag industry. Plastic bags are mostly manufactured in the United States. Another concern is that many reusable bags are made cheaply in China and contain toxic heavy metalsl. There are many producers of reusable bags in California and the rest of the United States. In addition, compostable bags are a good alternative to plastic bags that can be used for things that paper cannot. Between compostable and reusable bags there is an opportunity to replace the job loss from the plastics industry. There can be problems or costs found in every policy or proposition but the key is to find solutions to such problems such that the benefits of the policy outweigh the problems. Many bans include requirements for reusable bags, including that they cannot contain heavy metals. There are pros and cons to the many different types or reusable bags but that problem can be dealt with through education about the best kind.

The most disturbing argument is that reusable bags are host to a lot of bacteria including coliform, E. Coli and moreli. The LA Times covered a story about a reusable grocery bag that caused an outbreak of norovirus-induced bacteria and nausea on a girls’ soccer team in Oregonlii.

This hardly seems like a case for using plastic bags but rather for keeping food out of bathrooms. Evidence does suggest that reusable bags should be frequently washed which can easily be done in a washing machine or with disinfecting spray. Although 97% of people do not currently wash their reusable bags, that does not mean it cannot be done. No one would wash his or her hands if it were not something that was taught as a health hazard. Education is necessary to help change consumer habits. Once people are educated about the risks, they will begin washing their bags and the risk will become minimal.

Moving Forward and Inspiring Change

While bag bans have been more widely adopted in the United States, plastic bag taxes may be a better way to inspire change in consumer behavior. Having to pay a fee for a bag is a gentle reminder of the environmental damage that comes with consumption. Both bans and taxes have proved to be very successful in reducing the use of plastic single-use bags. Which one is more successful would most likely be partially dependent on the area where it is implemented.

One of the most important components to be included in a plastic bag ban or a plastic bag tax is education. Since the end goal is changing the culture, it is essential that people understand the reasoning behind the ordinances and that they can visualize the results. As with most things, presentation is key.

Although taxes are unpopular, they may face less resistance than outright bans because they are a market mechanism rather than an outright government regulation. Taxes also give consumers more flexibility than bans do and allow for people to learn to be more conscious with their shopping habits.

One way to combat resistance is by including a provision that all the tax revenues from plastic bags are used to combat the problem and clean up the affected streets and waterways. In addition, education about how to avoid the tax is crucial. The tax is not an income tax, it is simply a tax on an item that you do not need. When people start to see plastic bags as an item they have to buy, they will realize that they are unnecessary and it is much more economical to bring reusable bags.

Education can solve many of the issues with plastic bag bans. Some people are concerned about the health risks from reusing bags considering that very few people wash them. This problem can be very easily resolved through education. Tags on bags can include “care instructions” reminding consumers that it is important for their health and safety to wash their bags regularly.

Since plastic bag taxes do not outright ban plastic bags there will be a transition period where the number of plastic bags consumed slowly declines. This will allow for the plastic bag industry to better prepare for the loss of jobs and sales. Job losses can be partially mitigated by manufacturing more reusable bags in the United States. To some extent, job losses will be inevitable but steps can be done to minimize the damage.

There are some things that will still require plastic bags, which is one nice aspect of a tax rather than a ban. People can still get plastic bags when they need them but they will not be free meaning that they will be more conscious about the amount they consume. Some retail locations will require exemptions. If the San Francisco Superior Court’s decision is not upheld, for example, take out and restaurants may be exempted under the preemption of the California Food and Retail Code. In addition, compostable bag use is increasing to replace certain plastic bag uses, which also helps mitigate job loss.

Although there will be some places exempted for health and safety reasons, a plastic bag ban or tax could be spread beyond grocery stores and pharmacies. A wide variety of retailers currently give out plastic bags such as clothing stores, hardware stores, department stores, and other stores. Reusable cloth bags could and should be used in these types of stores as well as in grocery stores. If anything the health risks are lesser than in grocery stores because there is less risk of bacterial contamination from clothing than meat, for example. It would be intelligent to have separate bags for groceries and for clothing and other goods but this falls under the common sense category along with not bringing groceries into the bathroom.

Some opponents of bag bans argue that plastic bags are only a small percentage of the waste stream. I reason that every little bit adds up and if no one took action because it only made a small difference, the world would be a very different place than it is today. I envision a sustainable world where reusable bags are the norm and being green isn’t just trendy, it’s expected. Maybe plastic bags aren’t the biggest source of litter but they are a substantial problem costing billions of dollars annually and threatening marine life. Small steps can lead to big changes but inaction will only contribute to the environmental and economic damage.

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