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Bisbee plastic bags dispute could test state’s power over cities

Plastic Shopping Bags on Isolated White Background

A Republican state senator wants Attorney General Mark Brnovich to investigate — and slap down — the city of Bisbee for what she claims is the decision to ignore a state law prohibiting local laws on plastic bags.

In a letter made public today, Gail Griffin of Hereford noted that lawmakers earlier this year reenacted a statute that specifically blocks any regulations, fees or deposits on bags, bottles, aluminum or other “auxiliary containers.” That law took effect this past Saturday.

More to the point, Griffin cited another statute, which also became effective the same day, requiring Brnovich to investigate any complaint by any lawmaker that a local government is violating any state law.

If Brnovich finds a violation, that law requires him to give the community 30 days to withdraw the regulation. And if the local government balks, the state treasurer is mandated to withhold that city or county’s state shared revenues, monies that can make up a substantial part of the local budget.

While this complaint is specific to Bisbee, the way it is handled and resolved is important.

This is the first complaint filed under that new law on local control. What happens could foretell what other cities and counties could face as lawmakers object to their local ordinances.

It also could result in litigation over how much power state lawmakers have over issues that cities — and particularly charter cities like Bisbee — contend are strictly of local concern.

This particular fight involves a Bisbee ordinance imposing a nickel-a-bag tax on disposable bags.

Retailers get to keep 2 cents for the cost of the bags and administering the fee; the balance goes to a fund that can be used to provide reusable carryout bags and to promote conservation and recycling efforts.

Shortly after the law was enacted in 2012, Bisbee City Attorney Britt Hanson wrote to Brnovich.

In that letter, Hanson cited several court rulings where judges have voided state laws that improperly interfere with the rights of charter cities, like Bisbee, to have the final say on matters of local concern. He said the city’s bag ordinance fits within that category.

“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,” Hanson wrote. “Accordingly, the city regards the ordinance as in full force and effect.”

And there’s something else: The Bisbee ordinance was enacted before even the 2015 law.

Griffin, in her letter to Brnovich, said she has been told that the city council and others operate from the position “that they are grandfathered and that the new law that took effect Aug. 6 does not apply to them.”

“The Bisbee City Council is choosing to ignore these new laws,” she said, of both the prohibition on bag ordinances as well as the statute requiring cities to bend to the will of the Legislature or face financial penalties.

She wants Brnovich to clarify that cities and towns cannot make their own laws which have been precluded by lawmakers and tell her “what steps you will be taking to enforce the Arizona statutes.”

Hanson said late Tuesday he could not comment on Griffin’s letter.

Griffin told Capitol Media Services the letter to Brnovich is the result of a complaint from constituents in Bisbee. But she rejected arguments that Bisbee — or any community — is free to enact such restrictions.

“I think cities need to abide by the statutes that are passed at the Capitol,” she said.

That issue of local control is significant. If Brnovich sides with Griffin, it could sideline similar restrictions on bags and containers being weighed in other communities including Tucson and Flagstaff.

But Brnovich also may not get the last word: There already is a lawsuit pending in Maricopa County Superior Court filed by Tempe council member Lauren Kuby.

Attorney Tim Hogan of the Arizona Center for Law in the Public Interest said when he filed the lawsuit that Tempe — along with Bisbee, Tucson, Flagstaff and 15 other Arizona communities — are “charter cities.” 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, fits the bill.

“Waste has always been a local issue,” he said.

Griffin disagreed.

“I think it’s a matter of statewide control because there are several other cities that are contemplating and have contemplated this particular issue,” she said.

After the lawsuit was filed in 2015, lawmakers repealed the original law and recrafted it in a way designed to defeat at least one of the legal arguments against it. But Hogan said the local control issue remains.

Charter cities in Arizona:

Avondale
Bisbee
Casa Grande
Chandler
Douglas
Flagstaff
Glendale
Goodyear
Holbrook
Mesa
Nogales
Peoria
Phoenix
Prescott
Scottsdale
Tempe
Tucson
Winslow
Yuma

— Source: League of Arizona Cities and Towns

4 comments

  1. “Let’s all get reactionary!”

    “And while we’re at it, dictatorial!”

    “And while we’re at it, environmentally suicidal!”

    Where do they dredge up all the Griffin’s who too richly populate our Legislature?

  2. I left our _unconstitutional,_ but would that matter to Griffin? Not likely. We don’t need no steenkin’ Constitution in Arizona!

  3. I hope there are more lawsuits against the law allowing unrestricted vacation rentals in cities, a case of the state overstepping its bounds.

  4. SB1487 The bill pushed by ALEC to control important stuff and punish those who disobey their wisdom … like whether a city can regulate use of plastic bags.

    We can thank SB1487 sponsor Senators Biggs who ironically now wants to take this type of thinking to Congress

    And co-sponsored by Kavanagh, Smith, Yee; Representatives Farnsworth E,
    Petersen: Senators Allen S, Begay, Farnsworth D, Shooter

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