Paxton files amicus brief with Supreme Court regarding Laredo's plastic bag ban

By Andrew Burger | Jun 28, 2017

AUSTIN – Texas Attorney General Ken Paxton and his office have filed an amicus brief with the state Supreme Court advocating in support of the Laredo Merchants Association’s contention that the city of Laredo’s ban on the use of plastic bags violates the Texas Solid Waste Disposal Act.

AUSTIN – Texas Attorney General Ken Paxton and his office have filed an amicus brief with the state Supreme Court advocating in support of the Laredo Merchants Association’s contention that the city of Laredo’s ban on the use of plastic bags violates the Texas Solid Waste Disposal Act.

The Texas Solid Waste Disposal Act “prevents a municipality from taxing or banning ‘the sale or use of a container or package’ for ‘solid waste management purposes,’” the attorney general’s office writes in the amicus brief, which was filed with the Texas Supreme Court on June 15. The state's 4th District Court of Appeals in San Antonio has petitioned the state Supreme Court to review the case, City of Laredo, Texas v. Laredo Merchants Association.

The attorney general’s office highlights that the issue’s significance isn’t limited to Laredo, but extends statewide. Similar municipal ordinances are now in effect in 10 municipalities, the brief states.

One thing commonly found in these municipal plastic bag bans is use of what the brief calls “magic words” that in effect are designed so as to avoid being found to violate the terms of the Texas Solid Waste Disposal Act. The brief offers up language included in Austin’s Ordinance No. 20120301-078 (2012) among several examples: “The proliferation of single use carryout bags presents a unique and pernicious problem for Austin’s citizens, environment, and wildlife.”

Similarly, the city of Laredo says the ordinance’s purpose is to “protect local wildlife,” among other things by reducing litter, the attorney general. The brief states that it is "immaterial" and "superfluous" in the context of the Texas Solid Waste Disposal Act, which was written and enacted so as to ensure that, “[i]n short, municipalities must manage waste, not people.”

Elaborating, the attorney general explains that in its interpretation of the act, "the Legislature wanted municipalities, not consumers, to find ways to efficiently manage waste.

“Therefore, the Legislature included requirements in the Act that prohibit local governments from passing the burdens of waste management to consumers, rather than employing serious efforts towards recycling, composting, source reduction programs, and the like.”

The act itself states that management is “the systematic control of the activities of generation, source separation, collection, handling, storage, transportation, processing, treatment, recovery, or disposal of solid waste.”

In its ruling, the 4th District Court interpreted the term “solid waste management” to encompass measures preventing the creation of waste. That, in turn, would encompass “litter prevention, contrary to the city’s contention,” according to the amicus brief.

The brief contends that in the terms used in the Texas Solid Waste Disposal Act, plastic bag bans such as Laredo’s exercise "systematic control" over, at least, the "activities of generation, source separation, collection, handling, transportation, processing, treatment recovery, and disposal of solid waste.’”

It could be reasonably argued that a container or package ban could qualify as any one, or all, of the solid waste management disposal methods specified in the act, the attorney general continues, but the court need not analyze them all.

“At a bare minimum, banning packaging or containers that may become litter controls the ‘generation’ of waste. Bag bans, like the city’s, manage waste and are unlawful because they defy the Act’s express preemption against impeding consumers’ access to and use of packages and containers.”

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