Bob Dunning

Bob Dunning: Plastic bag law infringes no rights

By From page A2 | January 08, 2014

Thanks to a kind reader looking out for my best interests, I now have in front of me an article from the San Francisco Chronicle titled “Appeals court upholds S.F. plastic bag ban as precedent.”
“In the latest legal setback for plastic bag makers,” begins the story under Bob Egelko’s byline, “a state appeals court has issued a ruling upholding San Francisco’s ban on single-use plastic bags as a precedent for future cases.”
Fair enough. Which means Davis’ recently passed plastic bag ban almost certainly will survive any and all court challenges as well.
“The ordinance, which the Board of Supervisors passed in February 2012, applies to all retail stores and groceries,” the story goes on, “expanding a narrower 2007 law that covered supermarkets and pharmacies. It prohibits plastic bags that can be used only once and requires stores to charge 10 cents for recyclable plastic or paper bags. Similar measures are in effect in about 50 cities and counties in California and have survived legal challenges.”
In a 3-0 opinion published last Friday, 1st District Court of Appeals Justice Paul Haerle noted that “evidence supports the city’s conclusion that its ordinance, by banning some bags and charging a fee for others, can only benefit the environment.”
What’s odd about the decision is not the affirmative ruling itself, but the court’s reasoning. Last time I checked, there is no requirement that the law must perform as those passing it assumed it would.
Otherwise, you couldn’t have laws against drunken driving unless you could prove such laws actually cut down on the incidences of drunken driving. Or you couldn’t have speed limits unless you could prove they actually cut down on accidents. Or you couldn’t have laws against 10-year-olds buying cigarettes unless you could prove they actually prevent 10-year-olds from smoking.
The real questions for state and federal courts concern the law’s compatibility with state or federal constitutions and whether the law unfairly targets one group and exempts another.
In other words, if Davis’ ordinance says single-use plastic bags are banned only at Nugget, but not at Safeway, Nugget would have a strong case on its hands. Or if it said that East Davis residents have to pay a dime for paper bags, but everyone else in town can have them for free, beleaguered Eastsiders likely would win the day if any of them could afford a lawyer.
But even if the ordinance fails to help the environment in the way lawmakers envisioned, there would be no basis for the court to overturn it. Nothing in the constitution says laws have to work.
The lawsuit was brought by the industry-backed Save the Plastic Bag Coalition, which argued that “paper bags take more energy to produce than plastic, leading to an increase in greenhouse gases, and also occupy more space in landfills.”
Arguments which, even if true, are not a basis for overturning a duly passed ordinance.
The Save the Plastic Bag Coalition was clearly wasting the court’s time.
Still, just to be sure the Davis law passes constitutional muster, I have scoured the Bill of Rights for any violation I might be able to take before a court of law.
The First Amendment offers some hope by saying Congress — or the Davis City Council — “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble plastic bags.”
The Second Amendment states “The right of the people to keep and bear bags shall not be infringed” and the Fourth Amendment guarantees “The right of the people to be secure in their persons, houses, paper bags, plastic bags and effects, against unreasonable searches and seizures.”
If you’re arrested for violating the plastic bag ordinance, the Sixth Amendment grants you the right to “enjoy” a speedy trial, the Eighth Amendment guarantees you the right to reasonable bail and also prevents the city of Davis from inflicting cruel and unusual punishment, like forcing a seagull to fly around the Yolo County Landfill with a Walmart bag on its head.
All in all, I’m afraid there’s not much there for the Save the Plastic Bag folks to hang their hats on.
Now, I may not like the plastic bag ordinance we passed here in Davis, but we all got to have our say before the council voted and the law is the law.
If you don’t like it, shop in Woodland.

— Reach Bob Dunning at [email protected]

Bob Dunning

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