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Lawmakers again pass plastic bag bill, but more legal challenges likely

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For the second time in two years, state lawmakers approved — and Gov. Doug Ducey signed — legislation on Monday designed to trim the ability of cities, towns and counties to regulate plastic bags.

And this time they think they’ve got it legally right.

HB 2131 makes it illegal for local governments to impose any tax, fee or deposit on any disposable bags. It it aimed at overturning an existing ordinance in Bisbee as well as preempting similar efforts being considered in other communities including Tucson, Flagstaff and Tempe.

But the measure is broader than that, preempting local codes on everything from cloth to glass and aluminum which is used to transport merchandise or food to or from a business.

Ducey signed the measure hours later, siding with the businesses who want the ban — and against the communities who want to exercise local control.

“This is common-sense legislation that ensures businesses didn’t have to deal with onerous and inconsistent regulations across the state,” said press aide Daniel Scarpinato, pointing out there are more than 90 cities and towns in the state.

“Having a patchwork of regulations is problematic,” he continued. “Gov. Ducey wants to simplify doing business in Arizona and that’s what this law does.”

Ducey signed identical legislation last year, only to find it challenged in court because it was combined with other provisions dealing with energy audits. Challengers said that runs afoul of constitutional requirements that legislation deal only with single subjects.

Adopting the change gets around that problem.

But that does not remove all the legal obstacles to the measure.

Tempe council member Lauren Kuby points out that the Arizona Constitution specifically allows charter cities to approve laws dealing with strictly local issues, no matter what the Legislature says. And Kuby, through attorney Tim Hogan of the Arizona Center for Law in the Public Interest, contends that regulating recycling programs and what does and does not go into landfills fits that definition.

That means the litigation will continue — at least as far as how the law affects the 18 Arizona cities with charters.

Bisbee, one of those charter cities, is mounting its own separate 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.

Bisbee imposes a nickel-a-bag tax on disposable bags. The retailers get to keep 2 cents for the cost of bags and administering the fee, with the balance going to a fund that can be used to provide reusable carryout bags and to promote conservation and recycling programs.
Shortly after the law was first enacted last year, 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.

“One of the several purposes of Bisbee Ordinance O-13-14 was to eliminate the unsightly  litter along Bisbee roads and elsewhere, that resulted from plastic bags blown and caught on trees,” he wrote. “Accordingly, the city regards the ordinance as in full force and effect.”

Hanson declined to comment Monday on the latest version of the legislation.

Central to the fight is the tension between merchants and environmental interests.

Trisha Hart, lobbyist for the Arizona Food Marketing Alliance, told lawmakers earlier this year that the customers of the grocery stores she represents want choices of what kind of bags they want.

“They do not want bans, fees,” she said.

But Sierra Club lobbyist Sandy Bahr 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.




One comment

  1. Where we stand determines what we see.

    The ironies embedded in a legislative agenda making it a priority to control cities usage of plastic bags is worthy of a book.

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