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How Government Works

Arizona Preempts Local Plastic Bag Regulations

Disposable plastic bags are both a convenience and a blight.  Across the nation, political battles are being waged over whether single-use, plastic bags should be banned.  Environmentally concerned citizens and local governments point to the plastic bag littler in streets, bags caught on trees and bushes, and bags blowing across highways.  They talk about the glut of plastic bags in landfills, plastic litter in oceans and waterways, and injury to wildlife.  On the other side of the battle are retailers and the plastic industry.  They claim single-use bags are more sanitary than reusable bags.  They also argue that customers want the convenience of bags provided by the store. 

Some Local and State Governments Have Chosen to Regulate Plastic Bags.

In August of 2014, California became the first state to ban single-use plastic bags offered by large retailers.  The District of Columbia also bans single-use plastic bags at most retail stores.  All of Hawaii’s counties with significant populations have banned stores from giving out plastic bags.  Thus, Hawaii has a de facto ban without ever passing a state law.  Some states have imposed fees on store provided plastic bags and promoted the use of paper bags, instead of plastic.

While states have been relatively slow to act, a number of U.S. cities have enacted bans or charged fees for single-use bags.  Those include:

  • Austin, Texas
  • Boston, Massachusetts
  • Chicago, Illinois
  • Los Angeles, California
  • San Francisco, California
  • Seattle, Washington
  • Boulder, Colorado
  • Portland, Maine

Other cities have responded to the issue with recycling programs and fees.

The Players and the Arguments

Retailers and the plastic industry have invested big money in lobbying against bans on plastic bags.  When California enacted a state-wide ban on single-use plastic bags in 2014, the industry mounted a massive PR campaign to get enough signatures to put a repeal referendum on the 2016 ballot.  The Progressive Bag Alliance spent $3 Million Dollars on the campaign.  Other big spenders in the repeal campaign were Hilex Poly, Formosa Plastics and Superbag Corporation.  Despite their efforts, the repeal effort failed, and the ban remained in effect. 

Proponents of banning the bags argue that plastic bags are carelessly discarded, littering the landscape.  When they end up in waterways, fish and sea creatures eat the bags.  The plastic can clog their digestive tracts, causing starvation.  Fish who eat the bags end up with plastic particles in their systems.  When people eat the fish, harmful plastic molecules end up in human tissue, causing possible illness.  In 2010, volunteers, participating in the California Coastal Commission’s annual clean-up day, collected more than 65,000 plastic bags on beaches and along rivers.

Opponents to banning single-use plastic bags argue that reusable bags are less sanitary.  Customers often fail to clean their bags between uses.  Store clerks report finding dead roaches and debris in the bottom of bags.  They also argue that customers want and, indeed, expect grocery and other retail stores to provide them with the convenience of plastic bags to carry their merchandise home.  Retailers claim they give customers the opportunity to recycle used bags.  Most grocery stores have a barrel or receptacle at the front of the store for customers to deposit bags for recycling.

Arizona’s Preemption of Local Bans on Plastic Bags.

Like some other conservative states, Arizona has taken a hard line against local governments enacting bans against single-use plastic bags by preempting local regulations.[1]  In 2012, the City of Bisbee enacted a ban on single-use plastic bags.  Bisbee an Arizona tourist mecca and artists’ community, was tired of the plethora of plastic bags they saw blowing through the city’s canyons, littering streets and catching on trees and thorny plants.  The problem became so pervasive that the city council took action by passing a city ordinance banning retailers from handing out plastic bags with merchandise.  Some retailers opposed the ban, but most of the community was in enthusiastic support. 

The city ordinance sparked the beginning of a state-wide battle over plastic bags.  The Arizona Food Marketing Alliance began lobbying the state legislature for a state-wide law to override Bisbee’s bag ban and to prevent other cities and towns from passing their own bag laws.  The lobbying efforts paid off.  State Senator Warren Peterson led the push for state legislation, and in 2015, he succeeded when the Arizona Legislature passed Arizona Revised Statutes, Section 9-500.38, a law preempting the right of local government to ban plastic bags.  The law goes even further by preventing cities, towns, and counties from regulating the use of boxes, bottles, and other single-use containers in transporting merchandising.[2]  The argument for the state law was to prevent a patchwork of local laws that would confuse merchants and consumers. 

Bisbee responded by ignoring the state law.  Other local cities supported Bisbee’s decision.  Tempe City Council member, Lauren Kuby, argued that the state law was unconstitutional because cities have the right to approve laws dealing with local issues like the litter caused by plastic bags.  Although the issue was litigated, the state courts upheld the preemption law. 

Bisbee’s tactic of ignoring the law eventually failed.  In 2017, Bisbee was forced to replace its bag ban with a new ordinance making it voluntary for retailers to refrain from using disposable bags.  Why did the city capitulate?  The state government threatened to withhold almost $ 2 Million Dollars in state funds allocated to Bisbee if the town persisted in ignoring the state law.  As Bisbee’s mayor explained, the city would be bankrupted if it lost that much money.  Bisbee had no choice but to knuckle under and comply.

What does the preemption of local bag ordinances say about our state government?  Does Arizona stand for the protection of individual rights by allowing businesses and individuals to decide if they want to provide or use store issued plastic bags?  Does it paint Arizona as a backward state that is weak on protecting the environment?  You need to decide for yourself.

Resources

www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/9/00500-38.htm

www.azdailysun.com/news/local/plastic-bag-preemption-enacted/article_e2146ff3-c4cf-5f79-8fc6-9c5b2a67949a.html

 


[1]  The term “preemption” means to override and make void a rule or law imposed by a more local government.  States can preempt local laws by arguing that an issue has state-wide significance and is not subject to local rule.  By the same principle, the Federal Government can preempt state law if deemed an issue of national importance.  For example: states cannot make laws about commercial transportation that conflict with laws passed by Congress and administered by the Interstate Commerce Commission.

[2]  For example:  cities may not impose an ordinance requiring deposits on glass bottles or banning Styrofoam containers.

This website has been prepared for general information purposes only. The information on this website is not legal advice. Legal advice is dependent upon the specific circumstances of each situation. Also, the law may vary from state-to-state or county-to-county, so that some information in this website may not be correct for your situation. Finally, the information contained on this website is not guaranteed to be up to date. Therefore, the information contained in this website cannot replace the advice of competent legal counsel licensed in your jurisdiction.

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