By William W. Abbott

The debate over local regulation of plastic bags has triggered three published appellate court decisions. Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, Save the Plastic Bag Coalition v. County of Marin (2013) 218 Cal.App.4th 209 and Save the Plastic Bag Coalition v. City and County of San Francisco (2014) 222 Cal.App.4th 863. The current state of environmental politics in Sacramento indicate that an accord has been reached on plastic bags, the result will likely be a set of uniform laws statewide to level the playing field (SB 270). However, an unexpected backlash has developed. With an almost Tea Party like fervor, a series of loose knit groups, callings themselves the Friends of Plastic Bags have surfaced around the state with purpose of qualifying local initiatives preserving the right to use non-reusable plastic bags free from state regulation (and state imposed expense.) A professor specializing in California politics, H. W. Johnson (coincidentally the great grandson of California’s champion of the initiative process, Hiram Johnson) of the University of California Riverside, has been studying this latest political movement. "The motives behind this are very mixed. There is no one simple explanation for what is driving this. For some, the thought of having vegetables in close contact with fruits strikes people as unhealthy, almost like some exotic foreign custom. They just can’t get their heads around it. For others, it’s a backlash against an all-knowing government. For a very small but measureable minority, they think Harry Reid and Barbara Boxer are behind the state legislation, which in my opinion puts them in the same league as the Flat Earth Society. However, this is not some wack job movement running rampant in California’s hinterlands, but it is happening in well educated, high income communities like Playa Blanco, Park Terrace, and San Remo. It defies conventional political wisdom. We may be witnessing a significant political sea change in California."

According to Professor Johnson, there is even talk of a statewide initiative which would embed the right to use disposal plastic bags in the California Constitution. "In my analysis, the California voters have advanced far less intelligent ideas through the initiative process, so we will just have to see how this plays itself out. Its been roughly 100 years since the California Constitution was amended to reflect the right of initiative. I think this latest movement reflects the ultimate right of the voters to take matters into their hands, for better or for worse." Californians Against Waste, a longtime activist group, issued the following statement: "We don’t see a statewide measure as having any traction. Our polling numbers show great support for limits on plastic bags." The Plastic Bag Confederation responded differently: "We are watching this carefully. We don’t think this is a one-time effort, like our single use plastic bags."

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.