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Plastic Bag Regulations and Preemption

posted on Mon, Oct 23 2017 3:24 pm by Network for Public Health Law

A requester who is a climate and health specialist asked about resources related to preemption of local laws by states, specifically state-level preemption of bans on the use of plastic bags by grocery stores, convenience stores, and the like. The Network provided the following resources and information:

General tools and research on preemption as a potential threat from a public health perspective are available from Grassroots Change. Network leaders are also engaged in legal analysis of preemption used as a strategy to defeat local efforts to support healthy communities.

State and local governments are concerned about the use of disposable and reusable bags and their impact on the environment and public health for several reasons. For example, the manufacturing process consumes resources and energy and generates emissions, plastic bag litter contributes to clean-up costs, plastic bags end up in the landfill much more often than they are reused or recycled, the decomposition process for plastic bags generates additional emissions, and many plastic bags find their way to our rivers, lakes, and oceans and affect marine ecosystems. Reusable bags made of other materials mitigate many of these effects, and thus state and local governments have tested a variety of regulatory strategies to discourage use of plastic bags and to encourage use of reusable bags.

Regulatory and policy approaches vary in several respects. They may be implemented at the state, local, or tribal level. They may address plastic bags only, or plastic, paper, and reusable bags. They may take the form of a ban, a fee, an incentive, or preemption (a law intended to prevent or limit the scope of the use of any of these legal tools by local governments). They may regulate a broad category of retailers and restaurants, or provide certain exemptions. Some jurisdictions dedicate the fees collected to support environmental activities, including climate adaptation or mitigation efforts.

The National Conference of State Legislatures (NCSL) analyzed state plastic and paper bag legislation during the summer of 2017. The NCSL analysis includes a map that shows which states have plastic bag bans; fees or taxes; labeling, recycling, or reuse programs; and preemptive laws. In addition, the NCSL page includes information about local regulation of plastic and paper bags. The Surfrider Foundation also tracks implementation of local plastic bag ordinances. In addition to state and local regulations, a number of tribal governments geographically located in Alaska have also implemented plastic bag regulations.

Legislation, negotiation, enforcement, and litigation are all ongoing with respect to plastic bags. The American Legislative Exchange Council (ALEC) posted a model state law to preempt local regulation of bags and other containers that may have served as a source for the recent wave of preemptive laws. The Massachusetts Chapter of the Sierra Club has posted a fact sheet and model ordinance to support efforts to pass local plastic bag ordinances in the state. The state of New York passed a preemptive law after the city of New York passed a fee for use of plastic bags at checkouts. Ongoing regulatory activity and negotiation is expected in New York in 2018. The Attorney General of Arizona is currently investigating whether the city of Bisbee is in violation of a statewide preemption law relative to plastic bag bans. An organization called provides brief summaries of court cases related to plastic bag regulations, including preemption of the regulations.

In light of this legal activity, the Network recommended close consultation with legal counsel in order to make informed decisions when evaluating legal and policy options, engaging communities, and drafting, enforcing, defending, and evaluating plastic bag regulations. This is particularly true for local governments and community coalitions in states where preemptive laws have been passed or considered.

Network attorneys are available to answer questions on this and other public health topics at no cost to you, and can assist you in using law to advance your public health initiatives. Contact a Network Attorney in your area for more information.

The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.