City of Los Angeles Plastic Bag Ban Challenged; Plastic Bag Ban To Be Challenged in Ventura and Santa Barbara Counties

By Anthony van Leeuwen

Editor’s note: Plastic bag ban is on the August 5 Ventura City Council meeting agenda. Mr. Van Leeuwen plans to speak and also report on the meeting.

June 2013: the City Council for the City of Los Angeles adopted a Single-Use Carryout Bag Ordinance.  The ordinance became effective on  August 1st 2013 with an implementation date starting on January 1^st 2014.  The ordinance prohibits the distribution of plastic carryout bags at the point of sale and allows only the distribution of paper bags with at least a 40% recycled content for a fee of 10-cents each.  

The ordinance grants a permanent exemption to the paper bag fee to families that participate in the California Special Supplemental Food Program for Women, Infants, and Children (WIC) or in the Supplemental Nutrition Assistance Program (SNAP) also known as the Food Stamp program.  Participants in these programs are exempt from paying the fee for paper bags when they shop; whereas, all others must purchase paper bags or purchase and  reusable bags.

The exemption also creates an economic burden for low income areas in Los Angeles where a disproportionate number of people are on public assistance including food stamps and WIC.  In these areas, retail stores would have to supply the more expensive paper bags free of charge rather than the less expensive plastic bags.  These costs will have to be recovered through higher retail prices and through the fees paid by non-exempt customers for paper bags.

On July 10th 2013, Save The Plastic Bag Coalition (STPB) filed a Petition for Writ of Mandate against the City of Los Angeles in the Los Angeles Superior Court.  The Petition asks the court to decertify the Environmental Impact Report (EIR), invalidate and repeal the carryout bag ordinance, and recirculate a corrected draft EIR for public comment. 

A petition for Writ of Mandate is also known as a petition for a writ of mandamus.  Mandamus is a judicial remedy usually in the form of a court order from a superior court to a subordinate court, corporation, or public entity to do or to refrain from doing a specific act which it is obligated under law to do or refrain from doing.

According to Mr. Stephen L. Joseph, Counsel for Save The Plastic Bag Coalition, the EIR prepared for the City of Los Angeles is defective and does not comply with the California Environmental Quality Act (CEQA).  Prior to certification of the EIR by the City of Los Angeles, during the Draft EIR Public Comment Period, Mr. Joseph raised objections at public meetings and also submitted written objections to the draft EIR and the Final EIR.

The California Environmental Quality Act (CEQA) is a state law to ensure  that facts about environmental impacts of a project are truthfully disclosed to decision makers.  These facts are to be documented in a Draft Environmental Impact Report (EIR).  Once a Draft EIR is prepared by the lead agency, a 30-45 day public comment period ensues and the public can review the Draft EIR and provide written comments to the lead agency. 

Comments by members of the public and responses to those comments by agency staff are then included with the Final EIR.  Once the public comment period ends, newly discovered defects do not have to be considered by the lead agency and only agency responses to previously submitted comments can be addressed. 

CEQA Guidelines state: “An EIR should be prepared with a sufficient degree of analysis to provide decision makers with information which enables them to make a decision which intelligently takes account of environmental consequences.”  When an EIR omits critical information and contains incorrect and misleading information, the EIR is said to be defective because citizens, City Councils, and Board of Supervisors cannot readily discern the true environmental impact of the project and may falsely conclude that a project will have no significant environmental impacts. 

When the Los Angeles City Council  voted to certify the EIR, it must file a Notice of Determination (NOD) under CEQA with the State Clearinghouse in Sacramento and with the County Clerk.  Once the NOD has been filed, opponents of the EIR have 30 days to file a legal action against the city which is exactly what STPB did.

Mr. Joseph, Counsel for STPB represents two corporations that manufacture plastic bags, both plastic bags that are banned by the ordinance and reusable bags that are subject to the ordinance. Mr. Joseph previously filed lawsuits against cities, to force them to comply with CEQA and develop an EIR to support the bag bans.  He has since, shifted gears in the public interest to force cities to complete a factually correct and accurate EIR.  In his own words “We simply want to see an honest EIR. We do not think that this is an unreasonable expectation.”

Objections to the City of Los Angeles EIR include the following:

1. The City of Los Angeles EIR relies on the Los Angeles County EIR that asserts paper bag use has declined once the ordinance was implemented.  The County of Los Angeles, under the Public Records Act was unable to provide paper bag use statistics for the time period prior to the effective date of the single-use bag ordinance; hence, the claim is unsubstantiated and cannot be used by the City of Los Angeles in their EIR.
2. The City of Los Angeles failed to address the bag usage statistics in a study by Team Marine, a student environmental group at Santa Monica High School. (Team Marine, 8 May 2013. “The Effects of the Plastic Bag Ban on Consumer Bag Choice at Santa Monica Grocery Stores”. Santa Monica High School) These high school students conducted observations of 50,400 grocery store patrons over a period of 19 months spanning from ten months prior to the Santa Monica Plastic Bag Ban to twelve months after.  Team Marine subsequently published their report in March 2013 which included observations before the ban, immediately after the ban and up to 1 year after the ban was implemented.  The study showed that paper bag usage increased after the Santa Monica bag ban rather than decreased as asserted in the EIR.   
3. The City of Los Angeles EIR falsely assumed that a reusable bag made from Low Density Polyethylene (LDPE) was one of the most “common reusable bags” and its environmental characteristics are representative of all reusable bags.  The LDPE reusable bag comprises less than 1% of all reusable bags. Reusable bags are predominantly made from Polypropylene (PP) or Cotton.  Bags made from these materials have different environmental characteristics than LDPE bags.
4. The City of Los Angeles EIR makes a baseless and unsubstantiated assertion that reusable bags are used at least once per week for 52 weeks.  The EIR fails to address the problem with over proliferation of reusable bags.  For example a family purchases reusable bags, receives free bags in giveaways, or goes shopping without enough reusable bags, and they end up buying a few more.  In Australia, an over proliferation of reusable bags occurred where families collect so many reusable bags that there is no way that bags are used once per week.  In other words, bags are not used sufficiently to have lesser impact on the environment than plastic bags they are supposed to replace.  Even if bags are used 52 times on average they will not be reused a sufficient number of times to offset the greater environmental impacts compared to plastic carryout bags.
5. The City of Los Angeles EIR makes a false assertion that Polypropylene (PP) reusable bags are recyclable and that cotton or canvas bags are compostable.  In the case of PP bags, there is no recycling infrastructure available to accept these bags for disposal .  In the case of cotton or canvas bags, there is no composting facility that will accept these bags in Los Angeles.  In other words, both PP and Cotton bags will end up in the landfill when disposed of.
6. The City of Los Angeles EIR makes the false assertion that plastic carryout bags are carried by stormwater runoff through the street gutters to the catch basins and to nearby creeks, rivers, beaches, and harbors. First, full capture devices are being installed that prevent plastic bags and other debris from entering the storm drain system or are captured by the storm drain system to prevent release to creeks, rivers, and the ocean.  The EIR also asserts that 25% of the litter stream entering the Los Angeles River Watershed via storm drains is comprised of plastic bag litter.   This assertion is simply untrue.
7. The City of Los Angeles EIR makes false and misleading assertions about marine impacts, for example the final EIR asserts that in 2010 “14.6% of marine wildlife found entangled were entangled by plastic bags”.  This would have one believe that tens of thousands of entanglements have occurred.  Based upon the report cited, there were only a total of 49 incidents of entanglement worldwide of which 19 were birds, 11 were fish, 6 were amphibians, 6 were mammals, 6 were invertebrates, and 1 was a reptile.

The EIR for the City of Los Angeles is very similar to the Regional EIR for Santa Barbara and Ventura Counties prepared by the Beach Erosion Authority for Clean Oceans and Nourishment (BEACON), a joint powers agency between Santa Barbara and Ventura Counties including the incorporated cities.  Both EIRs are copied from the same source and paragraph after paragraph are identical including flaws although each was tailored for the respective jurisdictions by a different contractor. 

During the public comment period for the BEACON Regional Draft EIR, STPB submitted written objections to the BEACON Draft and after the Final EIR was posted.  After STPB informed BEACON that it would litigate if the final EIR was certified, BEACON responded by revising the Final EIR to change its own role from Lead Agency to Co-Lead Agency with the Lead Agency being the jurisdiction that wanted to use the EIR to support a single-use carryout bag ordinance.  BEACON then reposted the Revised Final EIR.   This means that if a city or county wants to use the EIR they will have to certify it which subjects them to litigation.

The Regional EIR prepared by BEACON for Santa Barbara and Ventura Counties and incorporated cities like the EIR for the City of Los Angeles is defective.  Objections 2 through 6 for the City of Los Angeles EIR also apply to the BEACON Regional EIR.  Additional  objections are as follows:

1. The BEACON Regional EIR fails to factor into the environmental metrics the manufacture and distribution of small plastic trash bags to replace the plastic carryout bags that were reused by consumers to line waste baskets, dispose of trash, dispose of pet litter, etc.  Once plastic carryout bags are banned, consumers are expected to purchase bags to replace the plastic carryout bags.
2. The BEACON Regional EIR fails to address the fact that a 10-cent fee for paper bags may not be sufficiently high enough to prevent a substantial increase in paper bag usage such as occurred in other localities, such as Santa Monica.  Paper bags have a greater negative environmental impact than plastic carryout bags.
3. The BEACON Regional EIR falsely states that plastic bags are made from petroleum or natural gas.  Plastic bags are made from waste byproducts from oil and natural gas refining, such as ethane.  This is an important distinction because many people falsely believe that banning plastic carryout bags; for example, will save millions of barrels of oil.

At the  May 17^th 2013 BEACON Board Meeting in Santa Barbara, Mr. Joseph, counsel for STPB addressed the BEACON Board and offered to work with BEACON staff and its contractor Rincon Consultants, who prepared the EIR, on making corrections to the EIR to comply with CEQA.  Mr. Joseph stated that even if the Final EIR shows a negative environmental impact when implementing a bag ban that a jurisdiction could file a Statement of Overriding Considerations and implement a bag ban anyway, as Los Angeles County did.  

After the BEACON Board came back from its closed door meeting, STPBs offer was.  What this means is that STPB would be forced to litigate and the first city or county to certify the BEACON Revised Final EIR will face litigation.  When the agenda item to approve and distribute the EIR to BEACON member agencies, the author of this article and Mr. Joseph (STPB) objected to approval and distribution of the EIR representatives from several environmental groups,  Heal The Bay and Surfrider Foundation and several others, spoke for implementation of a plastic carryout bag ban. 

On July 12th 2013, STPB sent a Notice Of Intent To Litigate by email to Santa Barbara and Ventura County Supervisors, County Attorneys, and City Councilmembers for Santa Barbara, Ventura, Oxnard, BEACON, and its contractors.  In the notice, STPB stated “We will file a petition for writ of mandate in the Santa Barbara or Ventura County Superior Courts against any county or city that adopts a carryout bag ordinance based on the BEACON Final EIR. … we will be asking for decertification of the EIR, invalidation of any ordinance based on it, and recirculation of a draft EIR.”

While those are fighting words, STPB would rather avoid litigation as stated in Mr. Josephs own words, “I strongly urge the BEACON staff and any interested county or city staff to meet with us to try to avoid litigation. Let us work together to achieve a good EIR that complies with CEQA and informs rather than misinforms decision-makers and the public. I believe that the issues can be easily and quickly resolved.”

For our readers, it should be noted, that even if the EIR is revised to comply with the objections, and even if the EIR shows that implementing a ban on plastic carryout bags will have negative environmental impacts compare to the status quo, a bag ban can still be implemented if the jurisdiction adopts a Statement of Overriding Considerations.  Also, the state legislature could pass a statewide plastic carryout bag ban during the legislative session 

Citizens need to let their elected representatives at all levels of government know your position on a plastic carryout bag ban.  The best approach is to submit the issue to a vote of the people. 

Anthony van Leeuwen is a retired Electronics Engineer who worked for the federal government for over forty years before retiring.  He has both a bachelors and Master’s degree in Electronic Engineering with an emphasis on Computer Engineering.  See http://fighttheplasticbagban.com.