The Texas Observer

In a Blow to Local Government, Texas Supreme Court Strikes Down Plastic Bag Ordinances

Anti-regulation advocates have applauded the Texas Supreme Court's ruling against single-use plastic bag restrictions.

In a Blow to Local Government, Texas Supreme Court Strikes Down Plastic Bag Ordinances

Are you a Texan who hates having to take reusable shopping bags on your grocery run? Rejoice, for your time has come. After a new Texas Supreme Court ruling, your store could soon be stocked with all the plastic bags your heart desires. Want to double-bag that lollipop? Go for it! Hell, triple bag it.

In the last decade, at least 11 Texas cities — including Fort Stockton, Austin and Brownsville — have enacted laws banning single-use plastic bags at retail stores. The Laredo Merchants Association challenged Laredo’s ordinance in 2015, arguing that its ban was out of line with state law. On Friday, the Texas Supreme Court ruled in favor of the trade group, striking down plastic bag bans across the state.

The ruling is the latest volley in state leaders’ escalating war on local control. When Denton passed an ordinance to ban fracking in 2014, the Legislature stepped in, banning all bans on fracking to avoid what Governor Greg Abbott called a “patchwork of local regulations.” When Austin voted for stronger background checks for rideshare companies in 2016, the Legislature once again passed a statewide law that effectively voided part of the city’s ordinance and pre-empted other cities from following suit.

Representative Drew Springer explains his plan to outlaw plastic bag bans in the 2013 session. Springer filed the “Shopping Bag Freedom Act” days after Austin began banning plastic shopping bags. The bill never made it to the House floor.  Beth Cortez-Neavel

The justices seemed reticent to frame Friday’s ruling as another vote against allowing cities to set their own policy. “The roving, roiling debate over local control of public affairs has not, with increased age, lost any of its vigor,” the ruling stated, but the “judges have no dog in this fight.”

“City ordinances cannot conflict with state law,” the justices wrote. “The wisdom or expediency of the law is the Legislature’s prerogative, not ours. We must take statutes as they are written, and the one before us is written quite clearly. Its limitation on local control encompasses the ordinance.”

According to the Texas Solid Waste Disposal Act, local governments may not restrict or prohibit “the sale or use of a container or package.” The Laredo Merchants Association and other opponents of the local bans argued that the city’s ordinance violated this state law.

Ultimately, the argument boiled down to whether a plastic bag can be considered a “container or package.” Attorneys with the city of Laredo argued that the law applied only to waste, not in the case of prohibiting bags before they become trash.

The ruling puts the decision to provide plastic bags squarely on retailers. Environmental groups are calling on major stores such as H-E-B, Target and Walmart to continue operating without bags at locations where the local bans were enacted. A spokesperson for H-E-B, which operates 340 stores in Texas and Mexico, did not immediately return a request for comment. In response to a question on Twitter, the company wrote, “We will thoughtfully evaluate the issue to ensure we’re making the best decisions for our customers and the communities we serve.”

A broad coalition of groups — including ranchers, cotton farmers and environmental advocates — came together to support the cities’ bag bans, arguing that plastic bags are a threat to the environment and bad for business. The Texas Cotton Ginners’ Association supported the ban because plastic bags can cause costly damage to equipment and reduce the quality of the crop. Plastic bags pose a threat to wildlife and cattle, and also clog drains. Austin’s Solid Waste Management Department estimated that the city spends $330,000 to $805,000 annually to clean up litter and pay for infrastructure maintenance expenses caused by plastic bags.

“The only people that benefit from this [ruling] are the [Texas] Chemical Council and the petrochemical industry that make billions off destroying our land and water,” said Andrew Dobbs, legislative director at Texas Campaign for the Environment. “This is a huge victory for deadly pollution in our state.”

Anti-regulation advocates applauded the decision. Rob Henneke of the Texas Public Policy Foundation, an influential conservative think tank in Austin, said the ruling had “everything to do with reining in lawless city governments” and “reaffirms the ancient principle that City’s [sic] may not pursue their policy goals by any means necessary.” Attorney General Ken Paxton said the ruling “sends the unambiguous message to all local jurisdictions in Texas that they do not get to simply ignore laws they don’t agree with.”

Dobbs urged retailers not to return bags to their stores. “Retailers have the power to keep this benefit to our environment going, to decline to bring back these useless, dangerous products that cost them money,” he said. His group also plans to push for legislation that would give more control to local governments.