EIR Required For Ordinance Banning Retail Distribution of Plastic Bags

In Save the Plastic Bag Coalition v. City of Manhattan Beach, the Second District Court of Appeal (Los Angeles) has held that the California Environmental Quality Act (CEQA) required the City of Manhattan Beach to prepare a full Environmental Impact Report (EIR) before approving an ordinance to ban stores and other retail outlets from distributing plastic bags.

The case illustrates the breadth of agency approvals which may qualify as “projects” requiring environmental review under CEQA, and the low threshold for CEQA’s requirement that a project be studied in an EIR if there is a “fair argument” that it could cause a significant environmental impact. However, perhaps the more significant ruling is that the petitioner, an association of plastic bag manufacturers, was granted standing to oppose the City’s compliance with CEQA.

The City approved the ordinance based on a Mitigated Negative Declaration, which concluded that a ban on plastic bags would have a modest positive impact on the environment, by reducing migration of plastic refuse into the ocean. Opponents argued that a full EIR was required, since the ordinance would encourage distribution of paper bags. The opponents submitted four reports which concluded that paper bag manufacture and use has potentially significant adverse impacts, including greater power plant, paper mill and recycling plant emissions than are associated with plastic bags. The Court held that an EIR was required, noting that CEQA sets a very low threshold for preparation of an EIR: An EIR is required “[w]henever it can be fairly argued on the basis of substantial evidence that a project may have a significant environmental impact.” (Emphasis added.)

Perhaps the most legally important aspect of the case is the Court’s ruling that the petitioner had standing to challenge the City’s compliance with CEQA. A previous decision had held that a petitioner which opposes CEQA compliance on the basis of its commercial or competitive interests may lack standing to sue, as not possessing the required “beneficial interest” in enforcement of CEQA. (Waste Management v. County of Alameda (2000) 79 Cal.App.4th 1223.) The Court distinguished this case, noting that Save the Plastic Bag Coalition had alleged that its opposition to the ordinance was not commercial, and that it was an organization formed to “respond to the misinformation, myths and exaggerations that have been disseminated about the environmental impacts of plastic bags.” The Court’s ruling in accord with another case that held that a commercial competitor may have standing to bring a CEQA suit, so long as it does not allege “rank commercialism,” but instead advocates for strict CEQA compliance. (See Burrtec v. Waste Indus. Inc. v. City of Colton(2002) 97 Cal.App.4th 1133, 1138.)

Justice Mosk dissented from the ruling, questioning whether the ordinance met the minimum threshold of a “project” for which CEQA review was required. He acknowledged that CEQA broadly defines a project as “an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” However, since the evidence suggests the ordinance would result in only a slight increase in paper bag use, (i.e., the City has a relatively small population, and the ordinance would affect a relatively small number of high volume retailers using plastic bags), Justice Mosk questioned whether any public agency action was so free of “theoretical ‘reasonably foreseeable indirect’” effects as to be exempted from CEQA. Rhetorically, he asked whether “the kind and amount of supplies ordered by a public agency” might qualify as a “project” requiring environmental review.

For questions regarding the impact Save the Plastic Bag Coalition v. City of Manhattan Beach may have on your city or other CEQA issues, contact Amrit Kulkarni at 213.626.2906.