As proponents continue to tout the benefits of banning plastic bags, the debate over whether Texas cities like Austin actually have the ability to enact such ordinances has made its way to the attorney general's office.
“At least nine cities in Texas have enacted bans on plastic bags and adopted fees on replacement bags in recent years,” the letter stated. “This appears to be in contravention of state law.”
The letter, which was received last week by the attorney general’s office, asks the office to interpret a specific section of the Texas Health and Safety Code. The section states that a municipal district may not pass legislative restrictions or charge fees relating to the consumption of a “container or package” for waste management purposes.
“I can’t begin to tell you how many phone calls we received about the legality of the bans,” said Flynn, whose district does not have any communities that have imposed bag bans. Even though it doesn’t affect him directly, "there are a lot of people who are really incovenienced by it,” he said.
One of the most vocal opponents of bag bans, the Texas Retailers Association, approached Flynn about writing the letter to the attorney general’s office.
“It sure looks to us that the plain meaning of the statute’s language is that the state meant to stop local governments from adopting ordinances that prohibit or restrict the use of these bags,” said Ronnie Volkening, the president and CEO of the retailers association. “If the state Legislature enacted that language, then the cities are in fact engaging in an activity that they should not.”
Proponents of the ban say that the environmental benefits of the ban are many. "We’re seeing positive results in Austin such as a dramatic reduction in the number of plastic bags found in creeks and parking lots and along city streets," Bob Gedert, the director of Austin's resource recovery department, said in an email.
But Volkening believes that the most prudent environmental position on this issue is recycling plastic bags — not necessarily banning their use.
The push for an opinion from the attorney general's office comes a year after the retailers group filed a lawsuit targeting Austin’s plastic bag ban last February. But the group dropped the lawsuit after Austin officials asked it to disclose information on the sales of plastic bags.
“They were asking for proprietary information that retailers will not disclose for sensitive reasons,” Volkening said, adding that it would be very expensive for the association to contest the request. “Rather than disclosing that information, we felt it was necessary to drop the suit.”
Gedert said the city would stand by its single-use bag ordinance. The city’s law department did not respond to requests for comment.
Whatever the attorney general’s office decides, the opinion is not a legally binding decision, said Jeremy Brown, a research fellow who specializes in environmental law at the University of Texas at Austin School of Law. “AG opinions are basically a persuasive authority,” Brown said. “Austin or some other city can’t be found to have broken the law just because it did something that an AG opinion says it wasn’t supposed to do.”
But an attorney general's opinion against bag bans would have consequences. The opinion could scare off other cities in Texas that are considering implementing a ban. It could even persuade cities that currently ban plastic bags to overturn their ordinances because officials would be less confident about the legality of their decisions, Brown said. And groups like the Texas Retailers Association could file future lawsuits, because an opinion from the attorney general would be noticed by the court.
“So if the AG rules the plastic bags illegal and if the TRA files another lawsuit following the ruling, the courts may be more inclined to side with the TRA because the AG has set precedence,” Brown said.
As other Texas cities consider adopting similar plastic bag bans, the attorney general’s opinion could be key in their decisions, Flynn said. The AG’s office has 180 days to respond to the request.
The cities can either accept it or decide they want to challenge it by taking it to court, he said.
Disclosure: At the time of publication, the University of Texas at Austin was a corporate sponsor of The Texas Tribune. (You can also review the full list of Tribune donors and sponsors below $1,000.)