The best argument against plastic bag bans like the one Dallas is set to consider very soon is that they're not really worth the energy. Plastic sacks make up a relatively small fraction of the waste stream, hardly enough to justify inconveniencing shoppers or retailers.
It's not a particularly good argument, and it's failed to keep nine (and counting) Texas cities from adopting bag bans. Which is why libertarian skeptics, plastic bag manufacturers and grocery stores have been seeking alternative means of saving the plastic bags, like pointing to an obscure provision in state law that bars cities from regulating certain types of solid waste.
That was the argument put forth by Texas Retailers Association in its lawsuit against the city of Austin last year. And it's the argument being made by Republican state Representative Dan Flynn of Canton -- with the backing of the Texas Retailers Association -- in a letter asking Attorney General Greg Abbott to weigh in on the issue.
"At least nine cities in Texas have enacted bans on plastic bags and adopted fees on replacement bags in recent years," Flynn writes in the letter, which was first reported by the Texas Tribune. "This appears to be in contravention of state law."
The state law he's referencing is buried deep within the Texas Health and Safety Code and says that "a local government or other political subdivision may not adopt an ordinance, rule, or regulation to: (1) 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 ... or (3) assess a fee or deposit on the sale or use of a container or package"
It's hard to overstate how lame this is. Instead of pushing for a legal victory that could have effectively banned plastic-bag bans in Texas, the TRA drops its lawsuit (it cited a reluctance to give up information on bag sales, which it described as "proprietary") and turns to Abbott for an opinion, which carries all the legal weight of the piece of paper it's printed on.
Sure, it might cause cities to reconsider proposed or already implemented plastic bag bans, as the Tribune suggests, and it might embolden the TRA to pursue a future lawsuit, but cities and towns are free to ignore it as they wish.
Then again, they probably do have a better shot of getting a favorable outcome from the Republican gubernatorial nominee than an actual judge.
Send your story tips to the author, Eric Nicholson.
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