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AG’s opinion could revive battle over bag ban

Tuesday, September 2, 2014 by Mark Richardson

A Texas attorney general’s opinion issued late Friday could revive a long-running battle over the banning of single-use plastic bags from stores in Austin and a handful of other cities in Texas.

An opinion signed by Attorney General Greg Abbott states that an ordinance like the one in effect in Austin could be in violation — ironically — of a 1993 state law written to promote recycling and reduce the amount of waste sent to landfills. An AG’s opinion is a written interpretation of state law but does not have the force of law; it serves as a guideline for judges to use when ruling on a lawsuit.

Thus, the ruling does not mean that Austin’s ordinance is invalid, but it likely opens it up to a renewed legal challenge. Other municipalities in Texas with similar laws include Austin suburb Sunset Valley, along with Brownsville, Fort Stockton, Laredo and South Padre Island.

Following a 2011 resolution from City Council, Austin’s bag ban ordinance went into effect in March 2013. The Texas Retailers Association challenged the law almost immediately in court, but later dropped its lawsuit. State Rep. Dan Flynn (R-Canton), a northeast Texas conservative, sought the AG’s opinion earlier this year at the request of the Texas Retailers Association.

Some interpreted the request for the opinion as another chapter in the long-running saga of “Austin bashing” by conservative Republican legislators, unhappy with the city’s progressive political climate. However, the Texas Retailers Association maintains that it is merely representing its members’ interests and trying to preserve Texas jobs.

In a release Friday, the Texas Campaign for the Environment, a driving force behind the ordinance in Austin and other Texas cities, said the wording of the opinion is sufficiently vague that Austin’s ordinance would likely stand up to another legal challenge. The group states that the legality of a bag ban is specifically linked to a city’s stated reasons for enacting it, and city officials and environmentalists believe that Austin’s rationale was broader than the reasons outlined in the narrow opinion.

According to the opinion, “A court would likely conclude that a city ordinance prohibiting or restricting single-use plastic bags is prohibited by subsection 361.0961(a)(1) of the Health and Safety Code if the city adopted the ordinance for solid waste management purposes. Whether a specific city’s single-use plastic bag ordinance was adopted for such purposes will require a factual inquiry that is beyond the scope of an attorney general opinion.”

“Local governments are busy working to address the costs and harms of bag pollution, and this should encourage them to keep moving toward solutions,” said Robin Schneider, executive director of Texas Campaign for the Environment. “None of these ordinances were about mere solid waste management. They also seek to protect stormwater, wastewater and recycling infrastructure, end threats to wildlife, livestock, fishing and tourism, and save the estimated $25 million per year these bags cost local taxpayers.”

The original resolution passed by Council specifically said the city wanted to reduce the number of plastic bags entering the solid waste stream, but it also said the bags presented a serious environmental hazard “for citizens, the environment and wildlife.”

City officials also say it is a matter of local control, and that the state should not be dictating to local municipalities how to run their businesses. At the time the request for the opinion was filed, a spokesman for Mayor Lee Leffingwell said he “believes strongly in the concept of local control, and believes that the state should leave local cities to determine what’s best for themselves.”

Texas Campaign for the Environment’s Schneider agrees with the mayor.

“Local control should not be a partisan issue, and everyone wants a cleaner, healthier, more responsible community. That’s why we’ve found bipartisan support for letting local governments deal with this pollution problem,” Schneider said. “From dead cattle to litter-clogged storm drains to miles and miles of mesquite and cactus covered in bags, the impacts of this pollution are widespread and deeply felt in this state.”

Attorney General Abbott is the nominee of the Texas Republican Party for governor in the 2014 general election in November.

For a complete text of the opinion, click here.




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