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Tempe council member asks judge to void state bag law

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Calling the law an illegal intrusion on local affairs, a Tempe council member is asking a judge to void a new state law that blocks cities from regulating plastic and paper bags.

And Bisbee has decided to ignore the law entirely.

In legal papers filed Sept. 30 in Maricopa County Superior Court, Lauren Kuby said the full council gave her the go-ahead to start crafting an ordinance that would have banned single-use plastic bags at groceries and retail outlets. It also would have allowed merchants to charge at least a dime for a paper bag for their customers who did not bring a reusable sack into the store.

But all that came to a halt when the Legislature earlier this year voted to make it illegal for any community to adopt such legislation. That was designed to overturn an existing ordinance in Bisbee and thwart proposals being considered not only in Tempe but also in Tucson and Flagstaff.

And the new law does not stop with that. It also forbids mandatory recycling programs of any kind.

That, in turn, forced Tucson to scrap its own requirements that businesses report on how many plastic bags they use and how many they recycle. The law also voided another requirement that businesses train clerks on ways to reduce the use of plastic bags.

Only thing is, the law is illegal according to attorney Tim Hogan of the Arizona Center for Law in the Public Interest who has taken up the case.

Hogan said it starts with the fact that Tempe – along with Bisbee, Tucson, Flagstaff and 15 other Arizona communities are “charter cities.” And he said the Arizona Constitution “gives charter cities certain rights and privileges in local matters to legislate free from interference by the Legislature.”

The question of recycling, Hogan said, certainly fits the bill.

“Waste has always been a local issue, with cities operating trash management, the landfills,” he said. And that, said Hogan, means the wishes of local voters and their elected representatives trump the mandates of the Legislature. He said lawmakers can override local ordinances only on matters of statewide concern.

“I don’t think there’s a good argument at all for that being a statewide issue,” Hogan said.

Rep. Warren Petersen, R-Gilbert, who sponsored the provision, did not immediately return calls seeking comment. But during the floor debate earlier this year, Petersen said he was acting in the name of individual freedom.

“I understand that some people want to make the decision of ‘paper or plastic’ for other people,” he said.

“And I understand some people have an ideology of collectivism,” Petersen continued. “For me, I support individual rights and people making their own decisions.”

Bisbee is mounting its own attack on the new state law for the same reasons of local control. But its tactics are a bit different: The city has decided simply to ignore the Legislature.

Shortly after the law was enacted, Bisbee City Attorney Britt Hanson wrote to Attorney General Mark Brnovich, citing several court rulings where judges have voided state laws that improperly interfere with the rights of charter cities to have final say on matters of purely local concern. He said the city’s existing law fits within the definition.

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