The Fourth Court of Appeals on Wednesday sided with merchants and free-market groups who argued that Laredo’s ban on single-use bags is illegal because it is pre-empted by state law regulating solid waste disposal.
The 2-1 ruling overturned a lower court’s decision, the latest setback for environmentalists and advocates of local control in Texas.
Laredo, which estimates it once went through some 120 million plastic bags each year, is among several Texas cities — including Austin, Fort Stockton and Port Aransas — that have sought to regulate them to reduce waste.
The city argued that its ban was designed to beautify the city and reduce clogs in storm drains, not to manage solid waste as barred by the state law.
The lawsuit, filed by the Laredo Merchants Association, was the first challenge to such a ban to be heard in court. And it triggered briefs from 20 Texas lawmakers, a prominent free-market group and the Texas Municipal League — who squabbled over cities’ power to regulate commerce.
Wednesday’s ruling only affects Laredo’s ordinance for now, but it gives legal momentum to bag ban opponents elsewhere.
The state law in question is a small piece of Texas’ Health and Safety Code. Local governments, it says, can’t adopt a regulation to “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.”
Laredo contended that its bag ban’s purpose — “prevention of litter” — did not fall within the “management purposes” barred under the law.
The appeals court disagreed.
“The Ordinance does exactly what the Act intends to prevent — regulate the sale or use of plastic bags for solid waste management purposes,” Justice Marialyn Barnard wrote for the majority.
See here for the background. I’m sorry, I know I’m not a lawyer, but this is a ridiculous reading of the law. You can see here for the bill in question, and see here for its text. I’d bet you a dollar right now that if you tracked down the key people on that bill – author, sponsor, and conference committee members – none of them would claim it was their intent to forbid cities from banning or taxing plastic bags. The idea never would have occurred to them. It just boggles my mind that people who claim to be “conservatives”, who claim to decry “judicial activism”, who claim to oppose “big government meddling”, could view this as a victory for their principles. Do we want the Legislature to set the solid waste pickup schedules for cities like Laredo, too? I don’t get this at all. But here we are, and far too many of our Republican legislative overlords can’t wait to get to Austin in January and pass bills to do more things like this. This is where we are these days.
By the way, to continue with my hobby horse about the appeals courts and the opportunity that this year’s election provides: That 2-1 decision? The two are both Republicans, and the one is a Democrat. Now, there’s nothing that would keep the Supreme Court from overruling a 2-1 decision that had gone the other way, but still. This is what I’m talking about.