Environmental Impact Report Was Required For City Ordinance Which Prohibited Distribution Of Plastic Bags To Customers At The Point Of Sale

In Save the Plastic Bag Coalition v. City of Manhattan Beach, (— Cal.Rptr.3d —-, Cal.App. 2 Dist., January 27, 2010), a California Court of Appeal considered whether a city must prepare an environmental impact report (“EIR”) for an ordinance that prohibits certain retailers from providing plastic bags to customers at the point of sale. The Court of Appeal held the city must prepare an EIR.


On July 15, 2008, the City of Manhattan Beach (“City”) adopted Ordinance No. 2115, (“Ordinance”) which provides, “No Affected Retail Establishment, Restaurant, Vendor or Non-Profit Vendor shall provide Plastic Carry-Out Bags to customers at the point of sale.” As alternatives, the Ordinance allows reusable bags and recyclable paper bags that contain no old growth fiber, are 100 percent recyclable, and contain a minimum of 40 percent post-consumer recycled content. In the Ordinance, City recognized, among other things, that it has a strong interest in protecting marine life, both plastic and paper bags have a negative impact on the environment, plastic bags do not biodegrade and they are extremely light and easily caught by the wind, and plastic bags easily find their way into the marine environment.

City noted it had prepared an initial environmental study in compliance with the California Environmental Quality Act (“CEQA”). The study found that the plastic bag distribution ban would not have a significant effect on the environment. City acknowledged the Ordinance may result in greater use of paper bags and such use may have negative environmental effects such as increased emissions from power plants, paper mills, and recycling plants, increased traffic to ship paper bags to retail establishments, and increased emissions from the trucks that must carry the paper bags which are heavier and bulkier than plastic bags. The study also found the reduction in the use of plastic bags within City would have only a modest positive impact on plastic refuse migration into the ocean. However, the study concluded the Ordinance would have “no environmental impact as to aesthetics, agriculture, biological and cultural resources, geology and soils, hazards and hazardous materials, hydrology and water quality, land use and planning, mineral resources, noise, population and housing” or public resources. The study also concluded that due to the probable increase in the use of paper bags, impacts on landfill capacity and air quality “would be relatively small with minimal or no increase in pollutants.”

City issued a negative declaration under CEQA. After the Ordinance was adopted, Save the Plastic Bag Coalition (“Coalition”) filed a petition for writ of mandate claiming that City was required to prepare an EIR. The trial court vacated the Ordinance and found it could not be reenacted until an EIR was prepared.


The Court of Appeal affirmed the judgment of the trial court. The Court of Appeal found Coalition had standing to bring this mandate proceeding. The Court also found that the Ordinance is a project within the meaning of CEQA because City directly undertook an activity (adopting the Ordinance), which “may cause a direct or reasonably foreseeable indirect physical change in the environment.”

The Court concluded “it can be fairly argued based on substantial evidence in light of the whole record that the plastic bag distribution ban may have a significant effect on the environment.” A ban on plastic bags is likely to increase use of paper and reusable bags. “[P]aper bags have greater environmental effects as compared to plastics bags.” The negative environmental effects of paper bags include greater consumption of water and nonrenewable energy, and greater greenhouse gas emissions, solid waste production, and acid rain.

The Court noted City’s population and the number of its retail establishments may be so small and the concern by City’s citizens may be so high that there will be little or no increase in the use of paper bags so that the Ordinance banning plastic bags will have little or no impact on the environment. The initial study, however, does not contain information about City’s actual experience such as the number of paper and plastic bags consumed, the rate at which bags are recycled, how many plastic bags are placed in the trash, how City disposes of its trash, and other information vital to determining Ordinance’s affect on the environment.

The Court stated, “There is no statutory exemption from compliance with the [CEQA] based on a city’s geographical or population size.” There is no case law that indicates a small city should not be required to expend resources to comply with CEQA “when it believes its actions will have a positive effect on the environment.” The court concluded City should have prepared an EIR because CEQA (1) “requires informed decisionmaking with respect to the environmental effects of a proposed project;” (2) “preparation of an [EIR] is the key to environmental protection;” (3) “the fair argument test creates a low threshold for preparation of an environmental impact report;” and (4) “substantial evidence in light of the whole record supports a fair argument the plastic bag distribution ban may have a significant environmental effect.”


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Mona G. Ebrahimi | 916.321.4500