Plastic Bags and Local Control: Laredo Ordinance Case Pitches State vs. Cities

A gradual and steady decline of local control by municipalities in Texas began in the last five years and this erosion continues. Our firm has written several blogs on this topic.

I continually discover new areas of preemption by State law, such as fracking, oil and gas development, driving and texting, all of which have been covered in the media. This blog is about plastic bags you get at the grocery store.

Municipal attorneys, elected officials, and city staff have heard the refrain repeatedly and loudly since last summer’s legislative session that local control results in local regulatory differences, leading to a “patchwork quilt” of “burdensome” city rules.

As a refresher, there are several types of cities or incorporated municipalities in Texas. A general law city may only exercise powers granted by State laws, but cities with populations of 5,000 or more can hold an election to ratify a city charter and become a “home-rule” city.

Home rule cities have the right to govern by ordinance without having received that specific right from the Texas Constitution or legislature. Or do they? Preemption of this power to act is the root of the decline of local control mentioned in my first sentence.

In 2014, a legal dispute arose regarding the ability of Texas cities to pass ordinances banning or restricting plastic bags. A dozen states have state-wide laws banning or imposing restrictions on plastic bags, but Texas is not one of them. Texas cities Austin and Brownsville have passed ordinances banning the bags, but the bag ban legal fight in Laredo has caught not only my attention, but the attention of many others that work, and live in, and love the Rio Grande Valley. Laredo sits on the Rio Grande River, which continues to the Gulf of Mexico. The lower Rio Grande Valley is a fertile place where citrus fruits, vegetables and cotton are grown.

The legal argument boils down to this:

Does the Texas Health and Safety Code Chapter 361, known as the Solid Waste Disposal Act preempt a home rule city from passing an ordinance banning bags?* The Act was passed in 1969, a time when the plastics industry (i.e., the petroleum sector) was not the billion-dollar industry it is today, and, certainly, when the plastic bag was not used as prevalently by retail businesses.

The City of Laredo passed a plastic bag ordinance. Laredo retailers sued, the trial court decided Laredo’s ordinance was not preempted, the Court of Appeals in 2016 struck down the plastic bag ban and on November 7, 2016, the city filed a petition for review with the Texas Supreme Court, which heard oral arguments in January.

Many interested parties have written briefs, known as “amicus curiae” briefs, detailing their support one way or another. Amicus curiae is translated from Latin as “friend of the court,” meaning filed by someone that is not a party to the litigation but wants the Court to read what they have to say.

In support of the position that the City of Laredo properly exercised its authority as a Home-Rule municipality to resolve a local problem through its ordinance are: Texas Municipal Lawyers & Texas City Attorneys Association; Mr. & Mrs. Gerry Willis; Rio Grande International Study Center; Black Bass Unlimited; Texans for Clean Water, Inc.; Honorable District Attorney Jose Aliseda; Texas Campaign for the Environment; Environment Texas; Natural Grocers; Bicycle Sport Shop; Turtle Island Restoration Network; Environmental Clinic U.T. Law School; Texas Cotton Ginners Assoc.; City of Galveston; City of Houston; Frances Hagga; and, Texas State Senator Judith Zaffarini.

In support of State preemption of the City of Laredo ordinance by Texas Health & Safety Code are:  Texas Attorney General; State of Texas; Texas Retailer’s Association; and, BCCA Appeal Group, Inc. (coalition of companies including ExxonMobil, the Dow Chemical Company, and ConocoPhillips).

This decision, which should come in the next month or so, will either continue the decline of local control, or to the relief of many will allow a home-rule Texas City to exercise the authority the Texas Constitution mandates.

After all, since 1985, the Texas Department of Transportation adopted the logo: “Don’t mess with Texas.”

* Update: The Texas Supreme Court decided on June 22, 2018, that the law preempted the City of Laredo’s ordinance. For more, read the opinion here.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.