Hoping for the best, but not really expecting it.
In the case Laredo Merchants Association v. The City of Laredo, lawyers spent almost an hour arguing whether Laredo’s 2015 ban was illegal under state law. If the Republican-led court rules against the city, bag bans across the state could be deemed illegal.
The city of Laredo’s lawyer, former Supreme Court justice Dale Wainwright, argued single-use bags are not garbage, so they are not covered by the several lines of state law that the case hinges on. The code says local governments may not “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.”
The arguments made Thursday mirrored those in lower courts, where the case was originally decided in favor of Laredo before an appeals court overturned the verdict by a 2-1 margin. The city then appealed that decision to the Supreme Court.
The oral arguments represent the last public action taken on the case, but a decision by the Supreme Court could still be a long way away. The court has discretion over the timeframe for a verdict, and previous cases have taken anywhere from a few weeks to a couple of years to resolve.
The case hinges on only a few lines of the Texas Health and Safety Code, specifically section 361.0961, which states local governments may not “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.” In the lower courts, arguments focused on the specifics of the law, including the definitions of “container or package” and “solid waste management.”
Attorney Christy Drake-Adams filed a friend-of-the-court brief on behalf of the Texas Municipal League and the Texas City Attorneys Association supporting the city of Laredo and arguing that siding with the merchants would represent a swift departure from Texas’ history of supporting local governments.
“There just seems to be a trend that the state wants to consolidate power in the state’s hands,” Drake-Adams said. “They don’t want the federal government telling them what to do, and yet they want to tell local governments what to do.”
Drake-Adams also said this case could create a dangerous precedent of strict, uniform regulations on cities.
“Extreme uniformity and regulation fails to address diverse local concerns,” Drake-Adams said. “Texas is a great example of why that can’t work. A state as large and diverse geographically as Texas, that simply can’t work.”
Supporters of the merchants’ case are arguing that statewide enforcement of the law should overrule any local ordinances, and the inconsistent local laws like the plastic bag bans seen in cities across Texas cause unnecessary strain on small businesses.
“Inconsistent local ordinances harm the sales of affected retailers, force the layoff of employees, deprive retailers of their existing inventory of bags, and impose an expensive and complex requirement on multisite retailers to comply with varying ordinances across the state,” wrote Edward Burbach in a friend-of-the-court brief on behalf of the Texas Retailers Association in support of the merchants.
Remember, the goal here as expressed by Ken Paxton and abetted by Greg Abbott is to kill off all local bag laws, on the way to generally bringing cities to heel under the state. And yeah, we’re hoping the Supreme Court will stop them. If there’s a silver lining, it’s that the law in question can – someday – be easily modified to fix the flaw that the pro-bag-litter faction is exploiting. That would require winning some elections first, of course. But at least it gives us something to aim for.