Jim Porter: Paper or plastic? | SierraSun.com

Jim Porter: Paper or plastic?

Jim Porter
Special to the Bonanza

TAHOE/TRUCKEE and#8212; You faithful readers will recall that a year and a half ago we were critical of a Court of Appeal decision allowing a consortium of plastic bag manufacturers to sue under the California Environmental Quality Act (CEQA) to successfully challenge Manhattan Beachand#8217;s and#8220;no plastic bagand#8221; ordinance. Itand#8217;s nice to be right. The California Supreme Court just overturned the appellate court.

Plastic bag ban

Manhattan Beach passed an ordinance prohibiting retailers, like the two supermarkets in the City and the one Target store, from providing plastic bags to customers. The ordinance encouraged reusable bags, the ones we always forget to take into the store, and mandated that paper bags be recyclable. Nothing wrong with that, right?

The City staff report 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. This floating and#8220;Plastic Soup,and#8221; as it is sometimes called, is a serious environmental problem which is generally ignored.

Manhattan Beach concluded that greater paper bag use would not significantly and adversely impact the environment, so rather than prepare an Environmental Impact Report (EIR), the City prepared whatand#8217;s called a Negative Declaration, a significantly lesser and more abbreviated analysis of potential environmental impacts of the environmentally-friendly ordinance.

Save the Plastic Bag Coalition

That did not please a group of plastic bag manufacturers and distributors, so under the name and#8220;Save the Plastic Bag Coalition,and#8221; they challenged the Manhattan Beach ordinance demanding a full EIR.

The trial court and the Court of Appeal threw out the ordinance finding the Plastic Bag Coalition had and#8220;standing to sueand#8221; and that indeed a full EIR should have been prepared to analyze the potential negative environmental effects from use of paper bags. The City appealed.

Standing

The City argued that the Plastic Bag Coalition had no and#8220;standingand#8221; because it was a for-profit corporation and was suing to protect its own commercial and competitive interests in selling and distributing plastic bags. I.e., not suing to protect the environment.

The Supreme Court found the Coalition had standing even though it was a for-profit corporation because it has an interest in the impact of the ordinance. This decision now opens the door to allow almost anyone to use CEQA, including businesses challenging competitorand#8217;s projects and the common practice of unions using CEQA lawsuits to win labor concessions and#8212; a misuse of CEQA law.

Neg. Dec. v. EIR

Under CEQA, any project approved in California must undergo environmental review. If a and#8220;fair argumentand#8221; can be made that a project may have a significant adverse effect on the environment, a full EIR is required. It is because of this low standard that municipalities sometimes require EIRs for projects that clearly will have little or no adverse impact on the environment. They donand#8217;t want to be sued.

That low threshold may have changed as the Supreme Court determined that and#8220;substantial evidence and common sense support the Cityand#8217;s determination that its ordinance would have no significant environmental effect. Therefore, a negative declaration was sufficient to comply with the requirements of CEQA.and#8221;

In essence, the Court weighed the Coalitionand#8217;s evidence and applying common sense (what a novel idea), found it not to be substantial, thus an EIR was not required. Victory for the City.

Dissent

My favorite part of this case is the dissent written by Court of Appeal Justice Mosk, which was essentially followed by the Supreme Court. Mosk wrote: 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;

Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe 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 porter@portersimon.com or at the firmand#8217;s website http://www.portersimon.com.




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