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. This type of litigation argues that customers would simply switch to paper bags and/or thicker plastic bags that qualify as reusable.
Many cities now successfully mandate a minimum charge for paper and reusable bags meant to encourage Bring Your Own Bag (BYOBag) behavior, and also to avoid these environmental claims. See the opinion in the San Luis Obispo, CA case below for a detailed discussion on how mandated charge essentially eliminated the environmental claims. Also see this Plastic Bag Reduction Ordinance law journal article.
Unconstitutional Taxation Claims
Most cities cannot collect taxes under their state constitution except in areas where they're given specific authority.
HilexPoly, one of the biggest bag manufacturers in the U.S., sued Los Angeles County in 2012, claiming that the 10-cent charge for paper bags was an unconstitutional tax. LA County mandated that the retailer would receive the entire amount of the charge, and the Court of Appeals ruled that because no money went to the government, it could not be considered a tax. This is a typical strategy for many U.S. cities.
Cities in states where this constitutional issue does not 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 is a concept that suggests 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 relate to prior state legislation that explicitly blocks local plastic bag reduction legislation (bans and fees).
Preemption is one of the biggest challenges facing local fights against plastic, because state legislature can trump any progress at the local level. For more information on preemption, please consult our preemption page.
Links to lawsuit documents for selected cases: