Court upholds San Francisco’s expansion of plastic bag restrictions in unpublished case

Save the Plastic Bag Coalition v. City and County of San Francisco, First Appellate District, Division 2, A137056, December 10, 2013.

In 2012, San Francisco enacted an ordinance expanding existing restrictions on the use of plastic checkout bags by retail establishments in the city. Save the Plastic Bag Coalition challenged the ordinance, contending that, first, it did not comply with CEQA, and second, it was preempted by the state Retail Food Code. The trial court denied the Coalition’s petition and decided in favor of the city.

In an unpublished decision, the First District Court of Appeal upheld the trial court’s decision and the revised ordinance. The holding aligned with outcomes in other recent cases involving plastic bag bans in Marin County and Manhattan Beach.


There was no dispute that the ordinance was a project under CEQA, and therefore subject to further environmental review unless it was exempt. The city had found that the ordinance qualified for two categorical exemptions, and therefore could be adopted without first preparing an EIR. The Coalition argued that the city was precluded by law from relying on a categorical exemption for this project, or, alternatively, that the “unusual circumstances” exception to the categorical exemptions applied to the action.

Categorical exemptions

The Coalition did not dispute that the record contained substantial evidence that the ordinance fell within two categorical exemptions aimed at regulatory actions to protect the environment. Rather, the Coalition argued that the city committed two legal errors by relying on those exemptions. First, it argued no city larger than Manhattan Beach could rely on a categorical exemption for a plastic bag ordinance, based on language in the Supreme Court’s earlier decision in Save the Plastic Bag Coalition v. City of Manhattan Beach. Second, it argued the city was precluded by law from relying on the categorical exemptions in section 15307 and 15308 of the CEQA Guidelines because those exemptions only apply to “regulatory actions,” and the 2012 ordinance was a legislative action.

As to the first issue, the court found nothing in Save the Plastic Bag Coalition v. City of Manhattan Beach decision to support the Coalition’s contention that San Francisco could not rely on a categorical exemption simply because it was larger than Manhattan Beach. In fact, Manhattan Beach was not even a categorical exemption case. Regarding the second issue, the court in the more recent case, Save the Plastic Bag Coalition v. County of Marin, had stated that although ordinances are always legislative in nature, they may also constitute “regulations.”  Thus, the exemptions still applied to the city’s action.

Unusual Circumstances Exception

The Coalition also argued that the 2012 ordinance fell within the “unusual circumstances” exception to the categorical exemptions. The unusual circumstances exception states that a categorical exemption may not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. (CEQA Guidelines, § 15300.2(c).) “Unusual circumstances” are features of a project that distinguish it from other projects in the exempt class.

There is currently a split of authority over the proper standard of review for determining whether an otherwise exempt project falls within the exception. The court assumed for the sake of argument, without deciding, that the “fair argument” rather than “substantial evidence” standard applied. The Coalition argued that the ordinance was an unusual circumstance because it would increase the use of single-use paper and compostable bags without decreasing the use of other reusable bags, since the large number of tourists and commuters in the city would not bring their own bags or would underuse them before throwing them away. The court found no fair argument supporting this theory.

The court agreed with Manhattan Beach that studies on paper versus plastic bag life cycles, which suggested compostable and underused reusable bags were worse for the environment than single-use plastic bags, did not create a fair argument that the ordinance would negatively impact the environment; the court was not convinced global impact studies were a fair or accurate mechanism for measuring the impacts of a local ordinance. Even if the life cycle studies were arguably relevant in evaluating a plastic bag ban, the 2012 ordinance was not a flat-out plastic bag ban, but rather, a checkout bag ordinance that regulated all bags, not just single-use plastic bags.

2. Retail Food Code

Finally, the Coalition argued that the city’s ordinance was preempted by state law. The Retail Food Code stated it was the intent of the Legislature to occupy the field of health and sanitation standards relating to retail food facilities. The ordinance, however, did not establish health or sanitation standards for retail food establishments. The court concluded that the code did not regulate the field of retail food to the extent it precluded this ordinance, noting that “a field, even an entire field, has some ending point.” The fact that certain provisions of the code also addressed carryout bags did not alter the conclusion, since preemption doctrine does not preclude a city from exercising its police power on a subject simply because the Legislature has enacted a law on the same subject.

Requests for publication are expected to be filed.