California Litigation Update: Disappointing Settlement of Carpinteria Lawsuit
Below is a summary of pending litigation in California involving single-use bag ordinances:
Save the Plastic Bag Coalition v. City of Carpinteria– The sole basis of SPBC’s suit is that Carpinteria’s ordinance is allegedly preempted by the California Retail Food Code because it includes restaurants. Carpinteria recently decided to settle the lawsuit with SPBC by removing restaurants and small retailers from the scope of the ordinance due to “uncertainties of litigation” and paying attorneys’ fees to SPBC. (See staff report and local news article.) This was very unfortunate, but the California Retail Food Code issue is still being litigated in San Francisco Superior Court.
Schmeer v. LA County - (Hilex Poly's Prop 26 lawsuit) – Hilex Poly recently filed its appeal to the superior court decision in favor of the County. This appeal was expected and the appellate case will be briefed in the coming months. This was a test case for whether (and to what extent) Prop 26 regulates the paper bag charge included in second generation single-use bag ordinances. In March 2012, the Court ruled that the 10-cent charge on paper bags was not a tax under the California Constitution because the retailers keep all of the money collected pursuant to the ordinance, and even if the paper bag charge was a tax it would fall within the first exemption to Prop 26.
Save the Plastic Bag Coalition v. Marin County – The appellate case has been fully briefed. This means that the court of appeal will soon decide the issue of whether it was appropriate for Marin County to use a categorical exemption (rather than an EIR or negative declaration) to adopt its second generation single-use bag ordinance (a ban on plastic and charge for paper). Marin prevailed at the superior court level. No hearing has been scheduled yet.
Save the Plastic Bag Coalition v. San Luis Obispo Integrated Waste Management Authority - This case will also test whether a categorical exemption was sufficient under CEQA to adopt a second generation single-use bag ordinance. The hearing is set for March 22nd has been continued to a date TBA.
Save the Plastic Bag Coalition v. City and County of San Francisco - This is another test case as to whether a categorical exemption was sufficient under CEQA to adopt a second generation single-use bag ordinance. This case will also test SPBC’s state Retail Food Code preemption argument. SF prevailed on SPBC’s request for a preliminary injunction at a June 1st hearing. The ruling on SF’s Demurrer heard 6/28/12 is still pending. The hearing on the CEQA claim is scheduled for 8/27/12 at 9 a.m.