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Bag bans illegal, says state’s highest court

A Texas Supreme Court ruling July 22 could put an end to city ordinances such as those in Austin and Fort Stockton that ban the use of plastic bags. While merchants in Laredo rejoice, environmentalists are not happy.

Cities can no long ban merchants from using plastic bags in the state of Texas. The Texas Supreme Court ruled Friday, June 22, that a bag banning law in Laredo pre-empted state law, striking down that city’s ban. The ruling in Laredo Merchants Association v. City of Laredo puts other municipal ban ordinances in limbo.

Port Aransas successfully read the tea leaves two years ago after the first ruling in this case, which has been pending since the Laredo Merchants Association sued Laredo in March 2015. The Port Aransas City Council lifted its two-year-old bag ban in September 2016 when the U.S. Fourth Court of Appeals sided with merchants in the lawsuit.

At the time, city attorney Michael Morris advised the city to lift the ban, even though the ruling only affected the city of Laredo. Port Aransas would be in danger of facing a similar lawsuit if it kept the ban in place after that precedent-setting ruling, he warned.

The city originally approved the ban to protect beach wildlife and the environment. The bags, which are made from crude oil, have been blamed for the death of local wildlife that have either ingested the bags or been strangled by them. The bags also litter beaches, becoming an eyesore and a hazard.

“(The bag ban) has had an effect,” said Mayor Charles Bujan at the 2016 meeting, “but it has been ruled illegal.”

Texas cities that currently ban plastic bags for consumer goods include Austin, South Padre Island, Brownsville, and Fort Stockton. Port Aransas was the seventh city to pass a bag-ban ordinance.

The unanimous Texas Supreme Court ruling sought to clarify that the court was not seeking to get involved in politics but rather settle the specific question before it. The lawsuit by the merchants association argued that Laredo's ban on bags was in conflict with a state law that regulates solid waste disposal. The center of that debate is a phrase in the Texas Health and Safety Code that only allows bans not aimed at “solid waste management.”

The law in question states that local governments cannot adopt any regulations that “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.”

At the center of that restriction is the question of whether plastic bags fit the definition of a container or a package.

Since January, when the case finally came before the Texas Supreme Court, justices have worked to answer that question.

"Both sides of the debate assert public-policy arguments raising economic, environmental, and uniformity concerns," wrote Chief Justice Nathan Hecht in the ruling. "We must take statutes as they are written, and the one before us is written quite clearly. Its limitation on local control encompasses the ordinance."

Justice Eva Guzman encouraged state legislators in her concurring opinion to clarify the issue when it convenes in January 2019.

“I urge the Legislature to take direct ameliorative action,” Guzman wrote. “Standing idle in the face of an ongoing assault on our delicate ecosystem will not forestall a day of environmental reckoning— it will invite one.”

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