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Spurred by retailers, lawmaker seeks Attorney General opinion on bag ban

Friday, March 7, 2014 by Mark Richardson

Just barely past the one-year-anniversary of Austin’s law banning single-use plastic bags, Texas business interests are taking another shot at it, this time seeking an Attorney General’s opinion on whether such bans violate state statutes.


The opinion was requested by State Rep. Dan Flynn, a conservative Republican from northeast Texas, on behalf of the Texas Retailers Association. A spokeswoman for the representative said the association recently made the request of Flynn, who co-chairs the Committee on Transparency in State Agency Operations.


The request cites a passage in the state’s Health and Safety Code that restricts municipalities from “prohibiting the use of certain containers … for solid waste management purposes.” The passage does not specify plastic bags for carrying groceries. The association unsuccessfully sued the city last year under the same state law.


The coalition of Austin city officials and environmentalists who pushed the ban through reacted quickly to word of another challenge to the law.


“The City of Austin stands behind our Single-Use Carryout Bag Ordinance,” said Bob Gedert, director of the city’s Resource Recovery Department. “We’re seeing positive results in Austin, such as a dramatic reduction in the number of plastic bags found in creeks and parking lots and along city streets.”


He added that the ordinance appears to be well-received and is doing what the Council intended it to do.


“We are so pleased with how the business community has come forward and with how consumers have shifted their habits to use reusable bags,” Gedert said. “We aren’t aware of any businesses not complying with the ordinance, and no retailers have been given penalties or fines. The city is committed to working with businesses to help them comply and offers a number of resources to make this process as easy as possible.”


A spokesman for Mayor Lee Leffingwell, who was out of the country Thursday, said the mayor continues to believe strongly in the bag ban program. He added that Leffingwell also believes “strongly in the concept of local control, and believes that the state should leave local cities to determine what’s best for themselves.”


Andrew Dobbs, program director for the Texas Campaign for the Environment, also said it’s an issue of local control.


“Local governments are the ones who have to foot the bills when it comes to single-use bag pollution,” he said. “It follows that local governments should have the power to do something about the problem. For a state representative to seek a way to deny local governments a way to deal with the problem, it’s really a means of getting rid of the solution without providing a viable alternative.”


The ban, passed by Austin City Council, went into effect in March 2013. It blocks retailers from offering thin plastic bags at checkout counters used by customers to carry out groceries and other goods. The city passed the ban, in part, because the bags often end up littering the landscape and harming the environment. Nine other Texas towns and cities have approved a similar ban.


It is not the first time that the Texas Retailers Association has opposed banning plastic bags. The group, which represents most of the grocery store chains in Texas, lobbied hard for a year before its passage to prevent Austin from passing the law. When that failed, the association filed suit against the city over the law. That lawsuit was later dropped.


A Texas Attorney General’s opinion is an interpretation of existing state law and does not have the force of law in and of itself. The opinions, which are formulated by a panel of attorneys in the AG’s office, are used as a guide by both the courts for how to proceed in applying the law and the Legislature in writing new laws.


Greg Abbott, who is the Republican nominee for Texas governor, is the current attorney general and would issue any opinions in the matter under his name.

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