But the plaintiff isn't giving up so easily. “We always knew this wasn't going to get resolved at the lower court level,” says lead attorney Jim Parrinello. Next stop: California appeals court.
The debate revolves around the 10-cent fee that shoppers are now required to pay for a paper bag. (Unless they bring along a sturdy reusable bag of their own.)
Opponents to the ban are trying to claim…
… that the 10-cent fee is a “special tax,” which, under the newly passed Proposition 26, would require approval by a 2/3 majority of the California State Legislature.
Prop. 26 was a sneaky, Big Oil-backed initiative that re-classified government “fees” on companies — such as environmental fines for oil drilling — as “taxes,” thus requiring hard-to-get 2/3 approval from a gridlocked Legislature.
And Hilex-Poly saw the voter-passed initiative as a perfect way into the plastic-bag ban.
The Superior Court, however, recently disagreed, on the grounds that none of those dimes are clinking into L.A. County's own piggy bank. The ruling found that a fee cannot be considered a tax if it is not feeding directly into government coffers.
Supervisor Gloria Molina is glowing at the news:
“I feel today's ruling is a huge victory not just for Los Angeles County but for all jurisdictions waiting to see what happens in this case so they can implement similar laws. At issue was the fundamental legality of Los Angeles County's plastic bag ordinance, and I am very pleased Judge Chalfant decided in our favor. The purpose of the ten-cent charge was to incentivize consumers to shop with more environmental awareness while preventing merchants from having to take on yet another financial burden — particularly during rough economic times. We did not want to generate funds for the county — nor did we want to surreptitiously supplement the county's coffers. I'm grateful Judge Chalfant understood this.”
The plaintiffs are still calling BS, and will take this to appeals court. But we're mostly just left wonderinvg: If all that paper-bag money isn't going back to the county, where is it going?
Truc Moore, who works for the Department of County Counsel, tells us that “the money goes to the stores, and it stays with each individual store.” The stores must then use that money on any of the following:
• Costs associated with complying with the ordinance
• Actual costs of providing recyclable paper bags
• Educational materials or campaigns for reusable bags
All fine and dandy, for Mother Nature's camp. But many financial conservatives see the 10-cent fee as an indirect tax that shoppers are forced to pay if they don't have (or want to buy) a more expensive cloth bag.
Jim Parrinello for the plaintiffs says it's outrageous that there is “no oversight… audit or any other check” over how individual stores handle the money.
Indeed, the county attorney agrees that “it's pretty much up to the stores” to make sure the fee goes back into the anti-plastic-bag crusade.
Parrinello argues further that before the plastic-bag ban was ever in place, stores already had bag costs built into the prices of their goods.
That's where the county fights back. Its Environmental Impact Report on the ban — based on data from the California Grocers Association, Ralphs, Command Packaging, the American Chemistry Council and Crown Poly Inc. — shows that the average bag cost included in the price of a store item is under 1 cent. (Much closer to the cost of a plastic bag, not a paper one).
But there's another point of contention. The county determined that the average cost of a paper bag is 10 cents. However, the bags can run much cheaper than that, at 4 or 5 cents. And, disconcertingly, no one is keeping track of what stores are doing with the rest of our money.
A few cents may seem trivial — but if we're shelling them out every time we pick up groceries or shampoo or whatever, it can really add up.
Regardless of which side you're on, this could set an interesting legal precedent for Prop. 26, as well as other lawsuits against plastic-bag bans around California. (“Save the Plastic Bag Coalition” is currently suing San Francisco city government on the claim that paper bags are actually worse for the environment than plastic. Oh, brother.)
Hopefully, it might also clarify the legality of local government tacking on little charges to our daily lives here and there, depending on the latest green trend.