Jim Porter: Is an EIR necessary to answer ‘Paper or Plastic?’
February 11, 2010
Sometimes the California Environmental Quality Act (CEQA) is abused. Take the case of Save the Plastic Bag Coalition v. city of Manhattan Beach issued by the Court of Appeal last month.
Manhattan Beach passed an ordinance prohibiting retailers like supermarkets from providing plastic bags to customers. The ordinance encouraged reusable bags and mandated that paper bags be recyclable. Seems fairly benign.
The city’s rationale discussed the and#8220;Great Pacific Garbage Patch,and#8221; a massive floating, largely-plastic accumulation of debris in the Pacific Ocean which makes its way into the food chain. Fortunately, this floating and#8220;Plastic Soup,and#8221; as it is sometimes called, is coming into public awareness.
Manhattan Beach’s Initial Study concluded that the ordinance may result in greater paper bag use which would include a modest increase in paper mill use and shipping paper bags, but the study found there would be no significant adverse environmental impacts. So rather than prepare an environmental impact report (EIR), the city prepared what’s called a Negative Declaration, a significantly lesser analysis of potential impacts on the environment.
A group of plastic bag manufacturers and distributors calling itself Save the Plastic Bag Coalition challenged the Manhattan Beach ordinance claiming a full EIR would let the public know the and#8220;true facts about paper versus plastic.and#8221;
The Plastic Bag Coalition presented the city with five studies, most done by plastic bag associations, showing there are negative environmental effects from use of paper bags which should be fully studied. The Plastic Bag Coalition went to trial and won and#8212; voiding the ordinance. The city appealed.
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The city argued that the Plastic Bag Coalition had no standing to sue under CEQA because its interest was not in protecting the environment but purely commercial and competitive, which was obviously the case; however, the trial court granted standing and the Court of Appeals agreed. (In fact, the Coalition is challenging anti-plastic bag ordinances all over the country, true environmentalists that they are).
Under CEQA, any project approved in California must undergo environmental review. If the Initial Study about a proposed project finds that there is and#8220;no substantial evidence that the project may have a significant effect on the environment,and#8221; then a Negative Declaration may be used rather than a more comprehensive EIR.
If a and#8220;fair argumentand#8221; can be made that a project may have a significant effect on the environment, a full EIR is required. With this low standard the trial court found that four of the five reports on the use of paper versus plastic constituted such evidence, thus requiring a full EIR. The Court of Appeal agreed.
The Manhattan Beach environmental ordinance was thrown out and#8212; by a plastic bag association and#8212; using California’s main environmental law. Something disturbing about that.
Justice Mosk dissented, stating that and#8220;Requiring the small city of Manhattan Beach and#8230; to expend public resources to prepare an EIR for enacting what the city believes is an environmentally friendly ordinance phasing out the retail distribution (not use) of plastic carry-out bags within the city and#8230; just because of some hypothetical, de minimis effect of an ordinance and#8230; stretches CEQA and#8230; and the requirement for an EIR to an absurdity and#8230; this action to require an EIR was generated by the plastic bag industry for its economic interests.and#8221;
Justice Mosk facetiously wrote, and#8220;Perhaps an EIR is necessary for all the paper used by petitioner (the Plastic Bag Coalition) to obtain favorable reports and to institute litigation to challenge ordinances restricting plastic bags, and for the paper to be used in the EIRand#8217;s demanded by petitioner.and#8221;
Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe, Incline Village and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at firstname.lastname@example.org or at the firm’s website http://www.portersimon.com.