Using CEQA’s Categorical Exemptions for Plastic Bag Ordinances
Using CEQA’s Categorical Exemptions for Plastic-Bag Ordinances By Shanna Foley
The California Environmental Quality Act (CEQA) requires that all government agencies undergo environmental review, generally in the form of an Environmental Impact Review (EIR), prior to undertaking an ‘action’ that may impact the environment.
Save the Plastic Bag Coalition (SPBC), and other plastic-bag manufacturing groups, have successfully argued that CEQA should apply to ordinances banning plastic bags. Thus, prior to passing a law banning plastic bags, cities have been required to complete EIRs.
EIRs are lengthy documents that can cost a city thousands of dollars to produce and sometimes years to complete. Obviously then, it is advantageous for a city to avoid such a process.
CEQA has several exceptions to the general environmental review process, known as ‘categorical exemptions.’ While there are multiple categories of categorical exemptions, the two applicable to bag bans are projects in that are intended to benefit the environment, and will have a beneficial impact on the environment, and have no reasonable likelihood of significant adverse impacts. See 14 Cal. Code of Regs. § 15307, 15308 (“CEQA Guidelines”).
The City of Oakland attempted to use these categorical exemptions in passing its bag ban. A coalition of plastic-bag manufactures subsequently sued, challenging use of the exemption.
While the court agreed with the plastic-bag supporters that use of the categorical exemptions was improper, thus ordering the City of Oakland to undergo further environmental review, this decision should not be read to mean that all future use of categorical exemptions for bag bans are improper. Instead, this decision was based on a lack of evidentiary support provided by the City; cities should be able to rely on categorical exemptions in the future provided that they provide adequate evidentiary support for their decisions.
The Oakland Bag Ban and Its Litigation
In 2007, the Oakland City Council approved an ordinance that would have banned retailers from providing plastic bags to customers. The City had not prepared an EIR, instead relying on two categorical exemptions listed in CEQA.
Specifically, the City argued that its ordinance fell into the “Class 7” and “Class 8” exemptions, which exempts “actions taken by regulatory agencies as authorized by state law or local ordinance to assure the maintenance, restoration, or enhancement of a natural resource where the regulatory process involves procedures for protection of the environment.” CEQA Guidelines §§ 15307, 15308.
Because the ordinance was intended to protect the environment and natural resources from plastic bag waste, and other harmful impacts of plastic-bag use, the ordinance met the requirements for a categorical exemption. See City of Oakland at 11 (court notes that ordinance meets requirements for categorical exemptions).
The Coalition to Support Plastic Bag Recycling, a coalition made up of plastics manufacturers, sued the City, claiming reliance on these categorical exemptions was improper. The Coalition’s argument was that the Ordinance, by banning distribution of plastic-bags, would per se result in an increased use of paper bags. Additionally, the Coalition was able to present evidence to convince the court that the use and manufacturing of paper bags had adverse environmental impacts, which, according to the Coalition, were worse than impacts associated with plastic-bag use. Id. at 4.
The court agreed with the Coalition’s conclusion that a categorical exemption was improper. However, this does not mean that the court ruled that a categorical exemption is always improper with regarding to plastic-bag bans and similar laws.
Instead, the court found that the Coalition was able to raise uncontroverted evidence regarding potential environmental issues associated with the ban. Id. at 7. Put another way, Oakland had failed to present substantial evidence in the record to support its use of a categorical exemption. Id. at 4.
Perhaps in a rush to pass its bag ban, Oakland had not gathered information on the potential for an increase in paper bag use, the impacts of paper bag use, and a comparison of paper versus plastic.
Because the Coalition was able to raise uncontroverted information and issues, the court found that the bag ban fell into an exception to use of categorical exemptions: reliance on categorical exemptions s improper where there is a “reasonable possibility” that the project will have a significant effect on the environment due to “unusual circumstances.” Id; see also CEQA Guidelines § 15300.2(c).
The court found this “unusual circumstances” exception met because “[a] shift in consumer use from one environmentally damaging product to another constitutes an ‘unusual circumstance’ of an activity that would otherwise be exempt from review under CEQA as activity undertaken to protect the environment.” Id. at 11.
A New Wave of Bag Bans
In response to the Oakland litigation, a “second generation” of bag ban has evolved.
In order to address CEQA challenges centered on potential impacts of paper bags, several cities have begun to pass ordinances that ban plastic-bags but also place a fee on paper bags. Thus, even if a challenger such as the SPBC is able to sustain an argument that paper bags have a significant environment impact, a City can respond by showing that its ordinance will also deter the use of paper bags. Such an ordinance more thoroughly meets the goal of encouraging reusable bags and discourages the use of all single-use bags. See Save the Plastic Bag Coalition v. City of Manhattan Beach, Case No. B215788, at 1 (Cal. Ct. App., 2010) (dissent Mosk J.) (Ordinance does not need to prepare EIR where ordinance promoted use of reusable bags, not paper bags).
For instance, the model ordinance of the city of Los Angeles, passed in November of 2010, bans plastic bags and also includes a 10 cent charge on paper bags.
Such an ordinance addresses impacts from both paper and plastic bags and cannot be said to encourage the end result of an increase in paper bags. Thus, such a ban is better situated for a categorical exemption.
Marin County has been the first to test this theory. Marin County’s proposed ban would ban plastic bag distribution at affected stores as well as place a 5 cent charge on paper bags. Marin County does not intend to prepare an EIR, but instead plans to rely on CEQA’s categorical exemptions.
Marin County’s tactics will also be more likely to succeed than Oakland’s Ordinance if Marin County includes more information on its administrative record in order to address SPBC’s potential arguments. Again, the court found Oakland’s use of a categorical exemption improper because the challengers were able to present uncontroverted evidence and arguments regarding the impacts of paper bags. Thus, a city should address these arguments early on, thereby including this information in its administrative record.
In other words, a city needs to gather substantial evidence in support on its reliance on a categorical exemption. See City of Oakland at 6 (“If there is substantial evidence in the record demonstrating that he activity qualifies for any asserted exemption, the exemption applies.”).
 Text of ordinance available at http://plasticbaglaws.org/litigation/city-of-oakland/
 See Coalition to Support Plastic Bag Recycling v. City of Oakland, Case No. RG07-339097, at 3 (Cal. Sup. Ct. 2008) available at http://plasticbaglaws.org/litigation/city-of-oakland/ (“City of Oakland”).
 Substantial evidence means “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” CEQA Guidelines § 15384(a); see also Cal. Pub. Res. § 21168.5.
 Decision available at http://plasticbaglaws.org/litigation/city-of-manhattan-beach/
 See Text of Ordinance and CEQA documents at http://dpw.lacounty.gov/epd/aboutthebag/ordinance.cfm
 For more information on Marin County’s potential ban, see http://plasticbaglaws.org/marin-countys-brave-move-could-save-california-municipalities-millions-of-dollars/
 See Kylie Mendonca, Bagging It Up, The Bohemian (December 22, 2010) available at http://www.bohemian.com/bohemian/12.22.10/news-1051.html
 Reminder: The information on this website is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your specific situation.