First District Court of Appeal Upholds County’s Determination that Local Ordinance Banning Plastic Bags was Categorically Exempt from CEQA

The First District Court of Appeal considered a legal challenge brought against an ordinance enacted by the Marin County Board of Supervisors in Save the Plastic Bags Coalition v. County of Marin (2013) __Cal.App.4th __ (Case No. A133868). The ordinance prohibited certain retail establishments from providing single-use plastic bags and imposed a minimum fee for the distribution of single-use paper bags. The County determined the ordinance was categorically exempt from CEQA because it was a regulatory action designed to assure the maintenance, restoration, enhancement, or protection of natural resources and the environment. Both the trial court and Court of Appeal upheld the County’s determination.

Facts and Procedural Background

The Marin County Board of Supervisors adopted the challenged ordinance in 2011. This ordinance was intended to encourage retail customers to bring reusable bags for their shopping and applied to approximately 40 retail stores within the unincorporated county selling food or perishable items. The ordinance excluded restaurants and other establishments selling prepared foods.

The ordinance was proposed by the county’s agricultural commissioner who provided analysis to the Board of Supervisors which showed that single-use plastic and paper carryout bags have adverse environmental impacts throughout the state. According to the agricultural commissioner’s analysis, a shift to reusable bags would conserve resources, reduce the amount of greenhouse gas emissions associated with the production of single-use bags, reduce waste and marine pollution, protect water resources and water quality, and enhance the quality of life for county residents, visitors, and wildlife.

Among other things, the commissioner relied on a master environmental assessment prepared by Green Cities California in which it was reported that a ban on single-use plastic bags combined with a five-cent charge for single-use paper bags in the District of Columbia had caused as many as two-thirds of consumers to shift from single-use to reusable bags. From this information, the commissioner concluded that a ban on plastic bags combined with a minimum charge on paper bags would rebut any claim that the ordinance would simply shift consumer’s habit from one environmental impact to another (single-use plastic to single-use paper). Based on this finding, the county concluded that the ordinance was categorically exempt from CEQA “by demonstrating and achieving a result that is environmentally superior: moving people to reusable bags and reducing waste from all single-use products.” The county did not identify which categorical exemption it was relying on under CEQA.

During the hearing process on the ordinance, the Plastic Bag Coalition submitted numerous objections. The Coalition primarily argued that adoption of the proposed ordinance required preparation of an EIR because alternatives (paper bags and reusable bags) are worse for the environment than plastic bags. Despite the Coalition’s objections, the County Board of Supervisors adopted the ordinance.

Plaintiff filed a petition for writ of mandate in the Marin County Superior Court. The trial court denied the petition and determined that substantial evidence supported the County’s reliance on the categorical exemptions contained in CEQA Guidelines sections 15307 and 15308. The Coalition appealed.

The Court of Appeal’s Decision

The Court of Appeal first described the standard of review applicable to its review of this case. Where an agency concludes a project is categorically exempt from CEQA, that conclusion will be upheld if supported by substantial evidence in the administrative record. Once an agency has established that the project falls within an exemption, the burden falls to the party challenging the exemption to prove that the project is not exempt because it falls within one of the exceptions listed in CEQA Guidelines, section 15300.2. The court noted that, currently, a split of authority exists on the appropriate standard of review (substantial evidence vs. “fair argument”) to apply to a question of fact regarding any exceptions that would kick a project out of exempt status. The court declined to grapple with this split, as it determined the outcome in the case before it would be the same either way.

The Court of Appeal also drew on the California Supreme Court’s decision in Save the Plastic Bag Coalition v. City of Manhattan Beach. The Court of Appeal noted that the Manhattan Beach case involved preparation of a negative declaration for a plastic bag ban ordinance rather than an exemption, but it still found the Supreme Court’s analysis instructive. In Manhattan Beach, the Supreme Court focused on the distinction between local impacts created by a proposed project and impacts that would occur outside the public agency’s geographic boundary. The Supreme Court noted that there might be circumstances when more comprehensive environmental review will be required if it can be shown that a plastic bag ban will result in a significant increase in paper bag use, but that wasn’t the case in Marin County. Marin County’s ordinance applied to roughly 40 stores, compared to over 200 stores affected by Manhattan Beach’s ordinance. The Supreme Court had noted the description of the broader impacts of increased paper bag use in Manhattan Beach to be insubstantial, and the First District Court found the impacts in Marin County to be even more trivial. Here, there were significantly fewer retailers and a fee would be charged for paper bags, thereby increasing the incentive for consumers to bring reusable bags when shopping. No such fee was required by the Manhattan Beach ordinance.

The Court of Appeal then considered the Coalition’s primary argument that the county could not rely on the categorical exemption under CEQA Guidelines sections 15307 and 15308 [Class 7 and 8] because such exemptions are available only to “regulatory agencies implementing regulations authorized by a preexisting state law or ordinance.”  As an initial matter, the Court found that, though the Coalition had not raised the claim during the administrative process, the claim was not barred by a failure to exhaust. Citing another California Supreme Court Case, Tomlinson v. County of Alameda, the court noted that exhaustion is required so long as the public agency gives notice of the grounds for its exemption determination and holds a public hearing where members of the public have the opportunity to weigh in. In this case, county counsel did not identify the basis for the claimed exemptions until a continued hearing on the project.

On the merits, the Coalition argued (without citation to authority, as noted by the court) that legislative actions, such as the enactment of an ordinance, are never exempt from CEQA under Class 7 and 8 because these exemptions apply only to regulatory agencies. But the court acknowledged that the county’s adoption of the ordinance was an exercise of regulatory power provided to it by the California Constitution. The court stated that the “ordinance constitutes a regulation enacted for the purpose of protecting natural resources and the environment.” Having found the county could properly rely on the Class 7 and Class 8 exemptions, the court concluded the Coalition failed to address the substantial evidence relied upon by the County to support its determination that the exemption applied. The Coalition therefore failed to meet its burden to demonstrate that the exemption was not supported by substantial evidence or that an exception would apply to invalidate the exemption. The Court of Appeal affirmed the trial court’s judgment upholding the County’s adoption of the ordinance banning single-use plastic bags.