California Supreme Court upholds bag ban

 The California Supreme Court today issued a ruling that impacts not only plastic bag bans throughout the state but has far-reaching ramifications for the circumstances under which public agencies must prepare environmental impact reports under the California Environmental Quality Act ("CEQA").  The court ruled in favor of the City of Manhattan Beach, paving the way for the city's ban on plastic bags to go into effect.  Downey Brand partner Christian Marshargued the case before the Supreme Court on behalf of the appellant, Manhattan Beach.  He was joined in the argument by James Moose of Remy Thomas Moose & Manley for amici curiae Californians Against Waste.  "We were confident the city had a right to impose the bag ban, and this ruling gives cities acrossCalifornia some real clarity," Marsh said.  

An industry coalition of plastic bag manufacturers and distributors known as the Save the Plastic Bag Coalition sued Manhattan Beach for its citywide ban on plastic bags, arguing that the environmental impacts associated with increased paper bag use would outweigh any environmental benefits of the ban.  The city, among many in California with similar ordinances, imposed the ban to limit the number of plastic bags making their way into the ocean and marine environment.  The case raised two important issues that have been facing fiscally-strapped cities and counties across the state: (1) whether the coalition, which had a commercial interest in overturning the ban, qualified for "public interest" standing under CEQA, and (2) what is the legal threshold under CEQA for when a project or ordinance necessitates preparing an environmental impact report, known as an EIR.  In its ruling, the court sided with the city on the CEQA threshold, but ruled against the city on the coalition's standing to sue.

Justice Carol Corrigan, writing for a unanimous court, upheld the city's ban, finding that "it is plain the city acted within its discretion when it determined that its ban on plastic bags would have no significant effect on the environment."  In the face of a number of "life cycle" studies that had been put forth by the coalition, the court noted that "common sense leads us to the conclusion that the environmental impacts discernible from the 'life cycles' of plastic and paper bags are not significantly implicated by a plastic bag ban in Manhattan Beach."

The decision on the threshold for producing an EIR was being closely-watched by public entities and private project proponents alike, as often they are compelled to prepare costly and time-consuming EIRs even though the activity in question has little or no environmental impact (and in this case, a tremendous environmental benefit).  As Marsh reported, "Due to the risks associated with litigation over these decisions, public agencies often feel the need to go well beyond the requirements of the statute, at great time and expense.  This decision sets a more reasonable threshold for when pubic agencies must prepare EIRs, and will reduce the ability of would-be challengers to delay projects across the state.  Instead of conducting unwarranted environmental review, the decision allows public agencies to focus their limited resources on producing reports for projects that are much more likely to impact the environment than minor projects would."

Christian Marsh is a partner in Downey Brand's San Francisco office, and advises public and private clients on natural resource, energy, and land use matters involving water supply and water quality, endangered species, California planning and zoning law, and CEQA and its federal counterpart the National Environmental Policy Act ("NEPA").  Marsh also conducts trial and appellate-level litigation in these areas.  With a former partner, he prevailed in the last CEQA case decided by the California Supreme Court, Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481.