State Supreme Court case could bring an end to plastic bag bans in Texas

A Thursday Texas Supreme Court hearing on plastic bags could have implications that spread across the state faster than such bags blowing in the wind. 

The court will hear oral arguments in the case, Laredo Merchants Association v. The City of Laredo, in which the merchants’ association is arguing a ban on single-use bags by the city is illegal because an existing state law regulating solid waste disposal pre-empts it.

If the merchants’ challenge is successful, Texas cities, including Austin, Fort Stockton and Port Aransas could find their similar local bans on bags struck down, and the case would create deeper questions about the role of local regulation in the state. 

San Antonio’s 4th Court of Appeals ruled 2-1 in August 2016 that Laredo’s bag ban was illegal, overturning a 2015 ruling by the 341st Judicial District Court in Webb County that sided with the city. The city then appealed that decision, sending the case to Texas’ highest court.

The case hinges on only a few lines of the Texas Health and Safety Code, specifically section 361.0961, which states local governments may not “prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law.” In the lower courts, arguments focused on the specifics of the law, including the definitions of "container or package" and "solid waste management."

Attorney Christy Drake-Adams filed a friend-of-the-court brief on behalf of the Texas Municipal League and the Texas City Attorneys Association supporting the city of Laredo and arguing that siding with the merchants would represent a swift departure from Texas’ history of supporting local governments.

“There just seems to be a trend that the state wants to consolidate power in the state's hands,” Drake-Adams said. “They don’t want the federal government telling them what to do, and yet they want to tell local governments what to do.” 

Drake-Adams also said this case could create a dangerous precedent of strict, uniform regulations on cities.

“Extreme uniformity and regulation fails to address diverse local concerns,” Drake-Adams said. “Texas is a great example of why that can’t work. A state as large and diverse geographically as Texas, that simply can’t work.”

Supporters of the merchants' case are arguing that statewide enforcement of the law should overrule any local ordinances, and the inconsistent local laws like the plastic bag bans seen in cities across Texas cause unnecessary strain on small businesses.

“Inconsistent local ordinances harm the sales of affected retailers, force the layoff of employees, deprive retailers of their existing inventory of bags, and impose an expensive and complex requirement on multisite retailers to comply with varying ordinances across the state,” wrote Edward Burbach in a friend-of-the-court brief on behalf of the Texas Retailers Association in support of the merchants.

Plastic bag bans have also faced challenges from the Texas Legislature in the past. During the 2017 session, Sen. Bob Hall, R-Edgewood, filed a bill that would have prevented Texas cities from enforcing bag bans.

In a Business and Commerce Committee hearing on the bill, Hall argued that cities had "overstepped their authority" by implementing the bans. The bill died in committee and never made it to the Senate floor.

In the Laredo case, Texas Attorney General Ken Paxton is calling on the court to affirm the lower court’s ruling and eliminate plastic bag bans across the state. Scott Keller from the attorney general's office has submitted a form to participate in Thursday’s oral arguments, and Paxton submitted two friend-of-the-court briefs in support of the merchants association.

“The Legislature did not mince words when it removed the authority of Texas cities to restrict or prohibit plastic checkout bags,” Paxton said in a December 2016 statement.

Disclosure: The Texas Municipal League has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.