City plastic bag ban ordinance held preempted by Solid Waste Disposal Act

Laredo Merchants Association v. City of Laredo, Texas, 04-15-00610-CV (Tex. App—San Antonio, August 17,2016)

This is a statutory construction case in the San Antonio Court of Appeals determined §361.0961 of the Solid Waste Disposal Act (“the Act”) preempts a checkout bag ordinance enacted by the City of Laredo.

The City implemented a strategic plan aimed at creating a “trash-free city.” As part of this strategic plan, the City adopted the Ordinance designed to “reduce litter from discarded plastic bags,” and makes it unlawful for commercial establishments to provide checkout bags to customers.  Merchants filed suit against the City, seeking declaratory and injunctive relief. The trial court granted the City’s motion for summary judgment and the Merchants appealed.

The Act governs the management and control of solid waste materials. Section 361.0961 of the Act states a local government may not adopt an ordinance that “prohibit[s] or restrict[s], for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law.” The court held the language of §361.0961 of the Act unmistakably expresses the Legislature’s desire to preempt any such ordinance. Under the rules of statutory construction, a plastic bag is a “container” for purposes of the Act. After analyzing the ordinance, the court held it was enacted for the purposes of solid waste management. Therefore, the ordinance is preempted. The City’s summary judgment was reversed and judgment is rendered for the Merchants. The case is remanded for a determination of attorney’s fees.

If you would like to read this opinion click here. The panel includes Chief Justice Marion, Justice Barnard, and Justice Chapa. Justice Barnard delivered the opinion of the court.  Attorneys listed for the Merchants are James B. Harris, Christopher C. Peterson, James K. Lehman, and Gabriel Gonzalez.  Attorneys listed for the City are Kristina Laurel- Hale and Raul Casso, IV.