Greg Abbott: Bag bans may violate state law

Bans on single-use grocery bags in Austin and at least eight other Texas cities may violate state law, Attorney General Greg Abbott said in a written opinion Friday.

The opinion, however, was far Coach Factory Outlet from definitive, and Abbott declined to assess the legality of ordinances adopted by individual cities. Requested by state Rep. Dan Flynn, a conservative Republican from Northeast Texas, the opinion concluded that the bag bans appear to violate a Texas Health and Safety Code provision that was added in 1993 to encourage recycling and help cities reduce the amount of waste heading to landfills. The provision says cities cannot “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.”

The law did not define “container” or “package,” and in a brief submitted to the attorney general’s opinions committee, the city of Austin argued that the law refers only to objects that were meant to store garbage and solid waste.But the opinion, signed by Abbott, said the common definition of container — “a receptacle for Coach Outlet holding goods” — also applies to bags, which are “flexible containers that may be closed for holding, storing or carrying something.” “Based on the common understanding of these terms, a court is likely to conclude that a single-use plastic bag is a container within the meaning” of state law, the opinion said.

The hitch, Coach Factory Online Abbott added, will be in determining why a city enacted its ban.To run afoul of the Health and Safety Code, an ordinance must have been adopted “for solid waste management purposes” — a determination that goes beyond the scope of an attorney general opinion, Abbott said. “It is conceivable that a city adopting an ordinance that prohibited single-use plastic bags would do so to control the generation of solid waste, which single-use plastic bags will most likely become,” the opinion said. “Other purposes may also exist for such an ordinance, however.”

Officials in Freer and Laguna Vista, for Coach Outlet Stores example, said their ordinances were intended to protect animals from hazards discarded bags could pose, the opinion noted. Flynn’s letter seeking Abbott’s opinion, submitted in March, was written at the request of the Texas Retailers Association, which says bag bans raise expenses for low-income families, complicate transactions and ignore the majority of plastic bags and wrapping that can foul the environment.

The association made similar arguments in a 2013 lawsuit to overturn Austin’s ban but dropped the case after city lawyers demanded that retailers reveal proprietary information during Coach Factory Outlet pretrial discovery, association officials have said. Environmentalist Robin Schneider was encouraged by Abbott’s opinion, saying it would allow cities to ban plastic bags for a number of reasons. “None of these ordinances were about mere solid waste management,” said Schneider, executive director of Texas Campaign for the Environment.

“They also seek to protect stormwater, Coach Outlet wastewater and recycling infrastructure, end threats to wildlife, livestock, fishing and tourism and save the estimated $25 million per year these bags cost local taxpayers.”

Austin’s ordinance, which took effect March 1, 2013, prohibits retailers from offering thin plastic bags and single-use paper bags at checkout, though they may offer thicker plastic or paper bags with handles, which the city considers reusable, and they may charge for those bags. Similar bans also are in place in Coach Outlet nearby Sunset Valley as well as Brownsville, Fort Stockton, Laredo and South Padre Island.