Plastic Bag Litigation
Typical Legal Claims in Plastic Bag LawsUITS
Lawsuits against plastic bag laws are generally brought by plastic bag manufacturing industry groups, and to a lesser extent retailer associations. Most of this litigation occurred in California at the local level in the years leading up to California's statewide bag law.
Potential environmental claims usually relate to straight plastic bag bans with no minimum charge for paper or reusable bags, arguing that customers would simply switch to paper bags and/or thicker plastic bags that qualify as reusable. Many cities now mandate a minimum charge for paper and reusable bags to encourage a change in consumer behavior towards Bring Your Own Bag (BYOBag) behavior and also to successfully avoid these environmental claims. See the opinion in the San Luis Obispo, CA case below for a detailed discussion of why the mandated charge essentially eliminated the environmental claims. Also see this Plastic Bag Reduction Ordinance law journal article.
Unconstitutional Taxation Claims
Most cities don't have the authority to collect taxes under their state constitution except in areas where they're given specific permission. HilexPoly, one of the biggest bag manufacturers in the U.S., sued Los Angeles County claiming that the ten-cent charge for paper bags was an unconstitutional tax. LA County mandated that the entire amount of the charge stay with the retailer and the Court of Appeal ruled that because no money went to the government that it could not be considered a tax. To avoid lawsuits, most U.S. cities mandate that the entire amount of the charge stay with the retailer. Cities in states where this constitutional issue doesn't exist may collect all or part of the charge as a tax and place the money into a fund. Washington, DC is not a city and part of the money from their 5-cent bag fee goes to a fund for environmental projects.
State Preemption Laws
The preemption doctrine refers to the concept that a higher authority of law will displace a lower authority when two authorities come into conflict. In the context of plastic bag laws, preemption concerns generally relate to legislation passed at the state level that explicitly blocks local plastic bag reduction legislation (bans and fees). Preemption is currently considered by many to be the biggest challenge to fighting plastic pollution locally, because any progress made at the local level on plastic bags bans and fees can be trumped by a state law passed by the state legislature.
Links to lawsuit documents for selected cases: