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Abbott issues bag ban opinion

It’s complicated.

plastic-bag

Do plastic bag bans and restrictions in cities like Austin, Laredo, and Brownsville violate Texas law?

According to an opinion issued by Attorney General Greg Abbott’s office handed down on Friday afternoon, that depends on how you define two phrases: “container or package” and “solid waste management.”

Opinions on Texas law from the attorney general’s office are not binding, though they do carry weight statewide and could make other cities reconsider possible bans or restrictions on the use of single-use bags. Abbott said outright bans on single-use bags, which have been passed in in Austin and Laredo, are legal if they weren’t passed for the purpose of “solid waste management,” which isn’t clearly defined by state statute.

When it comes to restrictions on single-use bags, like Brownsville $1 fee-per-bag or Dallas’ recently passed nickel-per-bag fee, Abbott has a narrower view: He doesn’t think Texas law allows fees for bags at all, though it’s still not totally clear if single-use bags are indeed “containers or packages” in the law his office refers to.

The Texas law in question, from the state’s Solid Waste Disposal Act, was added to the Health and Safety Code in 1993. It says that cities can’t “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 … [or] assess a fee or deposit on the sale or use of a container or package.”

That raises two questions: What’s a “container or package?” And what does “solid waste management” mean?

For the purposes of plastic bag bans and fees, that isn’t clear. Brian Sledge, an environmental attorney and lobbyist in Austin, said the 1993 law stemmed from backlash against new packaging that food companies were using. The packaging mixed recyclable material, like aluminum, with nonrecyclables. Cities in states like California banned the packaging, causing the companies to head to states like Texas and ask for legislation that would avoid the same problem.

“Plastic bags weren’t really on the radar screen” in 1993, said Sledge. “It’s hard to think that a bag’s not a container. It holds stuff. But I don’t think that is the intent of the statute.”

See here for the background. My layman’s opinion is that Abbott quite reasonably concluded that the 1993 law really doesn’t speak to the municipal restrictions being placed on plastic bags these days. Either the Lege can address it with a newer law, or the courts can decide when the matter comes before them. The Texas Retailers Association, which asked Rep. Dan Flynn to request the opinion and which is suing Austin and may sure Dallas, has been pushing for a state law to prevent these municipal ordinances in addition to its legal actions, so they’re working both fronts. Expect this to come up again in the 2015 Lege.

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