Texas Supreme Court holds City plastic bag ban preempted under the Solid Waste Disposal Act


City of Laredo v Laredo Merchants Association, 16-0748, — S.W.3d. – (Tex. June 22, 2018)

The Texas Supreme Court held the City’s plastic/paper trash bag ban is preempted.

As part of a strategic plan to create a “trash-free” city, the City of Laredo adopted an ordinance to reduce litter from one-time-use plastic and paper bags. The Ordinance makes it unlawful for any “commercial establishment” to provide or sell certain plastic or paper “checkout bags” to customers. The Laredo Merchants Association (the Merchants) sued the City to declare the ordinance preempted by state law. The Solid Waste Disposal Act, specifically Tex. Health & Safety Code §361.0961, precludes a local government from prohibiting or restricting “the sale or use of a container or package” if the restraint is for “solid waste management purposes” not otherwise authorized by state law. The trial court granted the City’s summary judgment motion, but a divided court of appeals reversed and rendered judgment for the Merchants. The City appealed.

A statutory limitation of local laws may be express or implied, but the Legislature’s intent to impose the limitation “must ‘appear with unmistakable clarity.’” The Solid Waste Disposal Act’s policy is to reduce municipal waste to the extent feasible. The Act’s preemption of local control is narrow and specific, applying to ordinances that “prohibit or restrict, [1] for solid waste management purposes, [2] the sale or use of a container or package [3] in a manner not authorized by state law”. The court held “solid waste management” refers to institutional controls imposed at any point in the solid waste stream, from generation of solid waste to disposal. The definition includes the systematic control of the generation of solid waste. The City’s argument the bags were not solid waste under the Act’s definition because they had not yet been discarded as waste at the point of regulation was rejected. Further, the Court held A single-use paper or plastic bag used to hold retail goods and commodities for transportation clearly falls within the ordinary meaning of “container”. Under the Act’s immediate context, the words “container” and “package” are not accompanied by words modifying or restricting the terms. The Act is not concerned solely with discarded materials but also includes regulations applicable to the production, retail sale, and distribution of new consumer goods. Finally, the Court held the preemption provision applies to local regulation when the manner is not authorized by state law. Manner is how something can be done, not merely if it can be done. The Act removes a home-rule city’s general power over solid waste, but provides limited authority back in certain situations not applicable here.  The City’s Ordinance does not fall within a manner authorized by another state law. As a result, the Act preempts the City’s ordinance.

Justice Guzmon concurred but wrote separately to emphasize the balance needed in such a situation. The City’s Ordinance had a valid environmental purpose. “Improperly discarded plastics have become a scourge on the environment and an economic drain.” Her opinion highlighted the damage caused by unchecked waste ranging from animals, to ranchers, to the agricultural industry. However, the City’s Ordinance listed only a moderate form of impact and had a direct financial impact on the merchants and non-local vendors. She noted a lack of uniform state-wide regulations creates concern and negative impacts, so some preemption is understandable and necessary. In the end the balance of all competing interests is the purview of the legislative branch, not the judicial branch.

If you would like to read this opinion click here. Opinion by Chief Justice Hecht. Concurring opinion by Justice Guzman, joined by Justice Lehrmann.  The docket page with attorney information is found here.

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