Last July, the Oakland City Council adopted the ordinance I co-wrote to ban plastic bags in Oakland. [I also wrote a one-page FAQ about the ordinance.] In August, the plastic bag industry sued the City on the grounds that we did not consider the potential environmental impacts of banning plastic bags(!). The Ordinance was to go into effect on January 18, 2008, but the City agreed to delay enforcement pending resolution of the case on the merits in the trial court ~~ oral argument is scheduled for Tuesday, January 29, 2008.
To bring attention to the bullying litigation tactics of the plastic bag industry in killing sound environmental policy as it chokes marine life, Councilmembers Nancy Nadel and Jean Quan will hold a Press Conference on the front steps of Oakland City Hall on Monday, January 28, 2008, at 10 am. If you're around, please come out to the Press Conference and show your support ~ we will be distributing free Oakland canvas bags (like the one in the photo). If you have a poster showing your support or bring your own canvas bags to hold up, we'll probably have you stand behind the speakers, on camera! [Before I attack the plastic bag industry, I do want to point out that one lone 'bag monster' does have its own blog ~ a clever, funny, and very informative site!]
Monday's Press Conference will focus on the use of litigation tactics of the plastic bag industry to stall environmental measures. But I want to also mention the very important environmental issues we highlighted in our June 2007 Press Conference, when we talked about why this plastic bag ban ordinance is so important:
- Every year, Californians use 19 billion plastic bags, and throw away 600 bags per second – creating 147,000 tons of non-biodegradable waste.
- These “free” plastic bags actually cost millions of taxpayer dollars each year in litter abatement, collection and disposal costs, landfill costs, street-cleaning costs, and contaminated recycling processes.
- Almost 10% of the oil consumed in the United – approximately 2 million barrels of oil per day – is used to make plastic, including single-use plastic bags.
- Petroleum-based plastic bags do not biodegrade, but instead persist in the environment for hundreds or thousands of years, slowly breaking down through abrasion, tearing, and photo-degradation into tiny toxic plastic bits that enter the food chain when animals mistake those materials for food.
- Beyond the economic costs, plastic bags are also a blight to our parks, neighborhoods, creeks, lakes, and the Bay.
- Not only do plastic bags get caught in trees, telephone poles, storm drains, and waterways, but approximately 100,000 marine mammals and turtles die each year from ingesting, or getting tangled in, plastic marine debris.
At Committee in June and at Council in July, we had scores of supporters come out and speak in favor of the ordinance. The compelling data convinced the City Council to do the right thing and adopt the ordinance. We made it through the first hurdle. But now we're spending taxpayer dollars fighting this lawsuit and cities across the country are watching ~ policy aides from Hawaii to Texas to Florida have called me to discuss the importance of this legislation and the devastating effect this lawsuit will have on environmental legislation if the plastic bag industry wins. Several other municipalities are so intimidated by the mere threat of a lawsuit, and the cost of potential litigation, that they are holding their legislation until they see how Oakland survives this lawsuit.
I should note here that the plastic bag industry did not sue San Francisco ~ it sued Oakland, even though our ordinance was modeled on (but not identical to) San Francisco's legislation. We are clearly seen as the smaller, more vulnerable municipality, with scarcer resources to fight this litigation. That alone, that tactic, is infuriating. I should also note that no grocery store owners spoke out against the San Francisco or Oakland ordinances ~ the California Grocer's Association and the plastic bag industry are the opponents. In fact, some smaller grocers have stated that when the big chains comply with the plastic bag ban, it will drive up demand for alternative bags and drive down the cost of compliance, making it even easier for them to comply (many of whom are eager to do so ~ after all, local shop owners know that Bay Area shoppers are environmentally conscious). This is a case of David versus Goliath ~ the single stone needed to stop this particularly nefarious Goliath is this lawsuit against Oakland ~ we just have to win; the fate of local environmental legislation across the country depends on it.
There are so many frustrating elements of this plastic bag ban issue and the reasoning of the plastic bag industry in their lawsuit. For one, they are corrupting the good intentions of the California Environmental Quality Act (CEQA) by claiming that our proposed ordinance constitutes a "project" under CEQA, thereby triggering environmental review. Generally, actual construction or traffic projects, or physical changes to actual land parcels, are "projects" which require an Environmental Impact Report (EIR) under CEQA. However, even if our proposed ordinance were considered a "project" under CEQA, an EIR would be wholly speculative because they are asking us to essentially predict consumer behavior. In other words, the plastic bag industry is claiming that if we ban plastic bags, then consumers will use paper bags or compostable plastic bags instead, and that will have an adverse environmental impact. But, says who? Who says that's what consumers will do?
First, as we explain in the June 26, 2007 Staff Report we presented to Committee, our ordinance doesn't promote the use of paper or compostable bags but rather encourages retailers to provide incentives for shoppers to use canvas bags. Indeed, it's an ideal marketing and branding opportunity ~ even Safeway and Long's now sell reusable bags with their logos on them. Second, you can't assume (especially in the Bay Area) that shoppers will simply choose paper or compostable bags rather than bring their own canvas bags - the plastic bag industry does not present any evidence to support that claim. An EIR would cost Oakland taxpayers over $100,000, and we would have no more information than we do now. The plastic bag industry knows this ~ if they win, and if we have to conduct an EIR, not only is the implementation of our ordinance delayed, but countless other cities will be intimidated into not adopting plastic bag bans. That has already happened in Fairfax, CA, where the Town Council repealed the plastic bag ban it unanimously approved last July, because it was bullied into doing so under threat of a lawsuit by the plastic bag industry.
What is even more appalling is the fact that the plastic bag industry is bullying its way into dictating environmental policy. About three years ago, San Francisco officials began developing legislation to reduce the blight and pollution caused by single-use plastic bags (in San Francisco alone, 50 million to 150 million bags are distributed each year!), by imposing a tax on petroleum-based plastic bags. The intent, of course, was to encourage shoppers to simply bring in their own bags ~ much like most Trader Joes and Whole Foods customers already do. The supermarket chains asked San Francisco officials to instead give them one year to investigate the issue ~ they promised to keep track of how many bags their stores distributed and they promised to work with San Francisco to reduce the use of plastic bags by 10 million. However, when the year passed, and San Francisco officials asked for the data, the supermarket chains refused to reveal the numbers, saying it was trade secret information. Even worse, instead of working on the actual problem during that year, the California Grocers Association and the plastic bag industry actually lobbied the California legislature to pass AB 2449 ~ an insidious bill which explicitly forbids cities from charging fees for plastic bags!
As I explain in the Supplemental Staff Report I co-wrote for the City Council on July 3, 2007, all AB 2449 really did was to implement a pilot program, in effect from July 1, 2007 until January 1, 2013, requiring large supermarkets in California to offer in-store recycling of plastic grocery bags in exchange for the pre-emption of local ordinances mandating a bag tax or other recycling efforts. The plastic bag industry and the grocers association sponsored AB2449, so the bill was by no means built on a foundation of altruism or actual environmental concerns, but rather on protecting their bottom-line: profits. So, the bill is woefully inadequate in several key areas:
- There is no requirement in AB 2449 for plastic bags to be made out of recycled content;
- There is no requirement in AB 2449 for an affected store to reduce their plastic bag usage;
- There is no requirement in AB 2449 to provide incentives for shoppers who use reusable bags or any requirement that consumers use reusable bags, although the bill does require stores to make reusable bags available to customers which may be purchased and used in lieu of paper or plastic carryout bags;
- There is no direct appropriation for enforcement or education contained in AB 2449. However, the measure does stipulate that any civil penalties collected pursuant to the bill may be used for enforcement of this bill.
As much as I wanted to tear apart AB 2449 in that Staff Report, I had to be diplomatic and write:
The proposed [Oakland] plastic bag ban is a parallel, complementary approach to AB 2449. This state law requires grocery stores to provide recycling bins for the collection of plastic bags – after the fact, after the plastic bag has already been manufactured and discarded. The intent of AB 2449 is to keep bags out of landfills. AB 2449 is therefore a downstream approach that addresses end-of-life of a product once it has been produced. The plastic bag ban Ordinance addresses the much more highly leveraged upstream arena of generation and consumption – and seeks to stop plastic bags from being manufactured in the first place.
All California cities should pass Resolutions asking the State Legislature to repeal AB 2449. And just this past Tuesday, January 22, 2008, the Los Angeles County Board of Supervisors did just that ~ the Board passed a Motion (which was introduced in December) to instruct the Chief Executive Officer to include in the 2007-2008 State Legislative Agenda the sponsoring or pursuit of legislation to repeal AB 2449.
The fact that there is only one U.S. city (San Francisco) with a plastic bag ban, while the rest of us are literally held hostage by the plastic bag industry is shameful. A growing list of countries and foreign cities from Australia to Zanzibar have already banned plastic bags, including China, Denmark, Ireland, South Africa, Taiwan, Singapore, Melbourne, and a number of East African countries. The U.S. should now join the one-quarter of the world's population that has banned this toxic pollutant.
Maybe we can do that soon, with the support and smart business sense of national chains that promote progressive environmental policy: Just last week, Whole Foods, Inc., announced that it is phasing out the use of plastic bags in all of its stores nationwide by Earth Day, April 22, 2008. Locally, City Car Share, which helps reduce air pollution and gasoline consumption by reducing the number of cars on the road through car sharing in Oakland, Berkeley, San Francisco, now provides reusable bags for grocery shopping in all of its cars.
Oakland is fighting a big fight on behalf of a lot of other wealthier cities ~ if you can, come out and show your support.