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Lawmakers consider bills to avoid plastic bag lawsuit

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With last year’s law under legal challenge, state lawmakers launched a new bid Wednesday to prevent cities and counties from regulating or banning plastic bags.

The new version of the law HB 2131, is identical to what Gov. Doug Ducey signed into law last year.

But last year’s law also included a separate prohibition against local governments forcing building owners to conduct “energy audits” and report on their power use. That allowed foes to charge that the statute violates constitutional requirements that all laws concern only a single subject.

With that change, the measure cleared the House Commerce Committee on a 4-2 party line vote. So did HB 2130, the energy audit ban, now as a separate measure.

Both now need approval of the full House.

But the tactic by Rep. Warren Petersen, R-Gilbert, may not end the lawsuit filed by a Tempe city council member.

Lauren Kuby points out that her city, along with 17 others, has adopted its own charter. And the Arizona Constitution gives those communities the right to enact laws of local concern no matter what is in state law.

So Kuby, through attorney Tim Hogan of the Arizona Center for Law in the Public Interest, wants Maricopa County Superior Court Judge Douglas Gerlach to rule that what was approved last year — and, by extension, any change approved this year — is unenforceable in Tempe and the other charter cities.

The law adopted last year makes it illegal for communities to ban single-use plastic bags at grocery stores and retail outlets. It also prohibits any ordinance similar to California laws which require merchants to charge a fee for a bag for customers who do not bring a reusable sack into the store.

That was designed to overturned an existing ordinance in Bisbee and thwart proposals being considered not only in Tempe but also in Tucson and Flagstaff.

On top of that, the law forbids mandatory recycling programs of any kind.

That forced Tucson to scrap its own requirement for businesses to report on how many plastic bags they use and how many they recycle. And it voided another requirement that businesses train clerks on ways to reduce the use of plastic bags.

Wednesday’s vote came over the objections of Sierra Club lobbyist Sandy Bahr. She said lawmakers should not get in the way of cities, working with local residents and businesses, to control litter as well as reduce landfill waste.

“Don’t limit the ability of local government to try to do good things,” she said.

But Trisha Hart, lobbyist for the Arizona Food Marketing Alliance which represents grocery stores, said government should butt out of what should be a decision that grocers, restaurant owners and other merchants make.

“Our customers are the ones who told us, ‘We want to have choices,’ specifically relating to plastic bags,” she said. Hart said a survey done by merchants found 80 percent of customers wanted to make that decision of paper, plastic or whatever themselves.

“They did not want bans, fees,” Hart said.

The question that remains, though, is whether the Legislature can enact the restrictions, at least on those 18 charter cities.

Hogan, in challenging the law, said the Arizona Constitution “gives charter cities certain rights and privileges in local matters to legislate free from interference by the Legislature.” And he said the question of recycling 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.

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