Wind Storm Litters Davis Countryside with Plastic Bags Right Before NRC Considers Single-Use Bag Ordinance

Written by Administrator Thursday, 01 March 2012 04:22

By Alan Pryor

Indeed, eliminating these costs of cleanup and litter control were the main reasons that some of the best run and most progressive cities throughout California have implemented plastic bag restrictions in recent years. These have  included Palo Alto, San Jose, Sunnyvale, and Santa Clara County in Northern California; Santa Monica, Long Beach, and Los Angeles County in Southern California; and San Luis Obispo County in Central California to name just a few.

Although the City of Davis does a reasonable job staying ahead of and controlling plastic bag littler compared to other cities that have considerably less resources, still hardly a day goes by when you cannot see plastic bag litter blowing along some street or pathway in the City or caught in trees or shrubs along our greenbelts and bike paths.

Unfortunately, however, areas in the countryside just outside Davis are not so fortunate to have these regular cleaning services and mother nature recently provided a very poignant lesson about how easily plastic bag litter can get out of control . A good case in point is the area surrounding the County landfill on Co. Rd. 28H which was turned into a shocking plastic bag trash zone by the recent windstorms buffeting Northern California mid last week.

A Plastic Bag Trash Pile in Wildlife Habitat

I personally witnessed this blight last Sunday morning as I drove along Rd. 28H just past the landfill north of Davis. Initially, I saw dozens and dozens of specks of white in the slough to the south of the landfill. Because the slough is slightly below grade, I turned onto the adjoining gravel road directly adjacent to the slough to get a better look thinking it was a flock of migrating birds that had landed. Lo and behold, though, the white specks turned out to be thousands of plastic bags strewn for about a half-mile along the width of the slough as shown in the following photos.

Looking across the road it was obvious they had been blown from the land fill over the retaining fence during the wind storm.

Even worse, driving back to the freeway and West Sac along Co. Rd 105, I counted over 200 plastic bags in the weeds, trees, and barb wire fences along the roadways before even getting to the freeway. Some of these bags were over a mile away from the landfill. Once on I-80, I counted another 72 bags flapping in the wind while caught in the barbed wire fence south of the freeway adjoining the Yolo bypass. Since then I spent a few hours picking up some of that litter in the slough but estimated it would take one person easily two weeks or more to retrieve all of the plastic bag litter and even then many dozens of bags would have been lost in adjoining private fields after being disked into the ground.

NRC Meets to Consider Single-Use Bag Restrictions

It was against this backdrop that the Davis Natural Resources Commission met last Monday night in Council Chambers to consider furtherance of the proposed single-use bag ordinance. The initial proposed ordinance was developed and submitted by the Commission's Zero-Waste Subcommittee to the NRC last November (see Vanguard article on November 23^rd, "NRC to Consider Restrictions on Single-Use Plastic Bags" for a description of that proposed ordinance).

In its simplest form, the proposed ordinance was quite similar to other municipal ordinances recently enacted in California. The proposed ordinance would only restrict distribution of handled, carry-out plastic bags by Davis retailers with annual sales in excess of $1,000,000. Restrictions on the thinner, handle-less plastic bags shoppers use for meats and produce within a store were NOT included in that proposed ordinance for sanitary reasons. Further, restaurants and fast food establishments are exempt as are pharmacies when dispensing prescriptions.

A 10 cent per bag charge was proposed to be applied to all full-size paper bags distributed by affected retailers to encourage people to bring their own reusable bags. However, those allowed paper bags must be recyclable and contain 40% post-consumer content as is the case with all similar municipal ordinances. The 10 cent charge is the presumed estimated cost of recovery incurred by stores for distribution of the recyclable large sized paper bags and is also the most common fee imposed by other municipalities with such ordinances. Davis Food Coop shoppers are well aware of the impacts of this type of ordinance as the Coop has eliminated single-use take-out plastic bags for years but only charges $0.05 for a paper bag.

Additionally, exemptions would be allowed for free distribution of bags to low income customers participating in either the California Special Supplemental Food Program for Women, Infants, and Children or in the Supplemental Food Program. Thus, low income customers, especially with children, will not incur additional costs for bags. Others can always use reusable bags and not incur any charges.

The single-use bag ordinance proposed to the NRC last November was originally received by an enthusiastic audience of supporters including a dozen or so citizens of Davis and a few dozen representatives from the University of California at Davis chapter of the California Public Interest Research Group (CalPIRG). At that meeting one Davis resident presented a 5 ft high by 3 ft diameter bag of compressed plastic bags which he had collected from a dumpster behind the local Davis branch store of a large national retailer. The myriad of different colored discarded bags showed that the bags had clearly been turned into the store to be recycled rather than being the result of the stores own internal operations. Rather than recycling the bags, however, the store merely dumped them into the trash to be sent to the County landfill.

Other Davis residents talked about their experiences collecting wayward plastic bags from all parts of the City including parks, walkways and paths, streets and parking lots, and open spaces and water ways. Then, representatives of CalPIRG presented over 4,500 individually signed petitions to the NRC signed by UCD students requesting the City ban plastic bags. All the evening's speakers favored elimination of the distribution of the plastic bags by Davis retailers and no one spoke in favor of retaining plastic bags.

The issue of regulation of single-use bags was again on last Monday's NRC agenda on February 27. At that meeting, Staff produced their own recommendation to the NRC after first consulting with the City Attorney, local business groups, and the Sacramento-based non-profit group, Californians Against Waste (CAW). CAW has been actively engaged with every municipality and County in the State that has implemented such single-use bag ordinances thus far and is currently working with several dozen other jurisdictions throughout the state to develop and implement their own ordinances. After these consultations, Staff proposed to the NRC the following timetable and procedure for future evaluation and possible progression of the ordinance to the City Council:

Staff indicated it would additionally meet with the local Chamber of Commerce and the DDBA to discuss the proposed single-use bag policy and conduct a local business roundtable/workshop with the NRC to share information and hear direct feedback from the business community.

Staff emphasized that their recommendation for a proposed ordinance in March would only be the starting point for environmental review purposes and they expected substantial input from citizens, business groups, and environmental groups during the process.

Staff also indicated that they believed the City should pursue a Negative Declaration or Mitigated Negative Declaration for compliance with the requirements of the California Environmental Quality Act (CEQA). A Negative Declaration states that the City has evaluated all possible environmental consequences associated with the proposed ordinance and finds that there are no adverse environmental consequences associated with its passage. A Mitigated Negative Declaration states the City feels there are only minor or insignificant environmental consequences which can simply be mitigated by adoption of certain provisions minimizing the minor environmental impacts.

Both the Negative Declaration and Mitigated Negative Declaration are a "middle-road" approach compared to performing a more stringent, full-blown Environmental Impact Review (EIR) or simply stating there are obviously no adverse environmental impacts and thus the project can declared to have a Categorical Exemption from environmental review under CEQA.

The presence or absence of an EIR and its sufficiency has had important consequences for early adopters of single-use bag ordinances in the past. This is because the Save the Plastic Bag Coalition, a front group for plastic bag manufacturers, routinely sued any jurisdiction implementing a plastic bag ban or a single-use bag ordinance.

These early suits generally claimed that the single-use bag ordinances are "projects" subject to CEQA review and aimed to force municipalities to spend money on expensive Environmental Impact Reviews or water down their proposed ordinances.

While many non-profit agencies and municipalities did not believe that plastic bag restrictions were subject to CEQA, some cities decided to conduct full Environmental Impact Reviews under CEQA before implementing their ordinances. These include the City of San Jose and the County of Los Angeles, among others. More recently, other cities have relied on Mitigated Negative Declarations or simple Negative Declarations stating that no extensive environmental impact reviews are necessary.

One City, Manhattan Beach in Southern California, took the most expeditious route by simple claiming a Categorical Exemption before enacting their ordinance. Clearly attempting to forestall this potentially fast growing trend toward reliance on simple Categorical Exemptions, the Save the Bag Coalition filed a lawsuit to overturn Manhattan Beach's single-use bag ordinance on the grounds that paper bags have a greater negative effect on the environment than plastic bags. The suit demanded that an environmental study or review be done before the Manhattan Beach ordinance went into effect.

Last summer, the California Supreme Court heard the City of Manhattan Beach's appeal of the lower court decision requiring they prepare a CEQA Environmental Impact Review for their proposed single-use bag ordinance. On July 14, 2011, however, the Supreme Court unanimously ruled in favor of Manhattan Beach affirming that their declared exemption from CEQA requirements for an Environmental Impact Review Report was proper.

The California Supreme Court ruling means that Manhattan Beach can restrict retailers from distributing single-use plastic bags, as is proposed in Davis by the NRC Zero Waste subcommittee, without going through a lengthy and expensive environmental study to determine the possible adverse effects of any potential increased use of paper bags. The unanimous court decision stated that "substantial evidence and common sense" show that the single-use bag restrictions wouldn't harm the environment. Justice Carol Corrigan, writing for the entire court, concluded there would be no environmental harm caused by the restrictions.

Thus, local governments should be safe from intimidation of possibly successful future industry lawsuits if they enact single-use bag ordinances without a full CEQA Environmental Impact Review.

Following Staff's presentation, the NRC next heard from a representative of the California Grocers Association (GCA). He stated the GCA had been actively involved in the development of the proposed single-use bag ordinance which failed in the State Senate last year and that they had also been consulted by and followed developments in other jurisdictions that had implemented single-use bag ordinances. He stated that the CGA accepts that prohibitions on single-use bags are the new norm and that their membership will adjust to accommodate these restrictions as necessary. He further stated that their primary concern is that any ordinances be broad enough so as to not provide any competitive advantage to their competitors such as convenience stores or gas station marts. This is a concern to the CGA because they have profit margins only averaging 1% and any competitive disadvantage imposed on them is taken very seriously.

He said the biggest obstacle for their member grocers was acceptance of the single-use bag ordinances by customers and convincing them that this is not a money-making effort on their part. He said it takes time for some customers to adjust to the fact that there are no more free bags but reminded the Commissioners that there never were free bags because the costs of the "free" bags were imbedded in the pricing of their food products they sold.

The next speaker was the Executive Director of Californians Against Waste who indicated he was willing to continue to provide assistance or input into the process as they have done with many California municipalities and counties. He said he agreed with Staff's decision to pursue a Negative Declaration as compared to affirming a Categorical Exemption although he felt both determinations were acceptable in light of the Supreme Court ruling. He stated he was inclined towards performing an environmental checklist leading to a Negative Declaration, though, because he felt it would make the City's position more defensible if the plastic bag coalition choose to challenge the City's ordinance in the future. He indicated he thought this might be a possibility only because Davis has a reputation as an environmental leader and it would be the first inland City to implement such a single-bag ordinance.

After a brief discussion by the Commissioners, a motion was made to approve Staff's development and implementation timetable and the Commissioners approved the motion unanimously. The next hearing will be on March 26 at 6:30 in Council Chambers.

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