This sucks: Banning plastic straws, the challenges it presents, and how to make it work

August 19, 2019

Lyle J. Manion

Introduction

A viral video of a sea turtle suffering because of a discarded plastic straw lodged in its bleeding nostril shocked many when it emerged online a few years ago.[1]  It is understandable that witnessing such pain sparked significant media attention and awareness, especially when coupled with the realization that an everyday commodity could cause such pain. As a result, plastic straws became a subject of discussion as society began to perceive their harm, leading to legal changes.  Seattle, WA enacted a ban on them in July 2018, with San Francisco and Santa Barbara, CA to follow suit in 2019.[2]

Straws are not merely vessels for liquids to travel through, though. They also serve as vessels for an academic legal discussion: the conflict between local city ordinances and state laws.  While the conflict between state and federal law serves as a hotbed of legal academic discussion, clashes between the locality and its parent state remain more elusive.  Localities, as political subdivisions of their parent state, must answer to the laws of that state.[3]  This creates a situation where a locality might wish to accomplish a goal to better its environmental surroundings and the well-being of its citizens, but cannot do so in the shadow of the laws of its parent state.

Bans on plastic commodities have led to varying results before, as a whole body of legal history on plastic bag bans already exists.  This case law may shed light on the newer phenomenon of straw regulation.

The Problem with Plastic Straws

Plastic straws seem ripe for regulation because of their contribution to environmental harm.  They contribute to approximately 7.5% of plastic waste.[4]  Plastic waste especially threatens the environment compared to other waste due to its lack of biodegradability, as “commonly used” plastics (those manufactured for human use such as containers, hardware, and the like) do not biodegrade.[5]  Instead of decomposing into the earth’s crust, they accumulate either in the earth’s ecosystem or in landfills with other forms of non-organic waste.[6]  A giant mass of mostly plastic waste in the Pacific Ocean demonstrates the sheer scale of plastic waste buildup in the ecosystem, stretching to twice the size of Texas.[7]  Scientists have coined this area, “The Great Pacific Garbage Patch.”[8]  This large amount of plastic is easily accessible to marine wildlife, and as the viral turtle video showed, wildlife can easily ingest plastic straws and undergo serious harm.[9] Unfortunately, the only way to get rid of plastics is to heat them to the level of combustion by incinerating them.[10]  Some experts claim emissions from this disposal method could negatively impact climate change.[11]

Background: Local/State Conflict

Courts have used the term “preemption” to describe conflict between localities and states, analogizing this clash to that of states and the federal government.  This traces back to article VI, section 2 of the United States Constitution, the Supremacy Clause, creating what scholars now call preemption.[12]

However, the schema for local/state preemption is broader than what the United States Constitution provides for.  According to Richard Briffault et. al., three conditions must present themselves for local/state preemption to arise: (1) The local government has the authority to adopt the relevant law in the first place, so the local law would remain valid regardless of a claim of conflict with the state law, (2) the state government must have the authority to adopt the relevant law, and (3) the state and local laws must be in conflict.[13]  Briffault likened local/state preemption to “floors vs. ceilings,” in which the state sets standards and a city exceeds said standards.[14]  Straw bans as a response to environmental concerns will likely test this analogy.

Plastic Bag Bans: Preemption of Local Ordinance by State Statute

In City of Laredo v. Laredo Merchants Association the Texas Supreme Court ruled on whether a state statute preempted a plastic bag ban a city sought to enact.[15] The facts of this case begin with Laredo banning commercial establishments from providing or selling plastic or paper checkout bags to customers.[16]  Plaintiffs, made up of interested parties who benefit financially from plastic bags, contended that this conflicted with the state’s Solid Waste Disposal Act.[17]  The act states that local governments “may not adopt an ordinance to prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by law.”[18]  The court interpreted the language of the local ordinance as expressly stating three objectives:  (1) to “promote beautification” through “prevention of litter,”  (2) to reduce costs of floatable trash controls and storm drainage, (3) to protect from dangers associated with storm water flooding.[19]  Thus, the principle issue in this case rested on whether the prohibition set forth in the Solid Waste Disposal Act preempted these objectives.[20]  The Texas Supreme Court held that the state act preempted the local ordinance.[21]  The court reasoned that the ordinance was clearly aimed at managing solid waste that would lead to the issues in the stated objectives, contrary to the city’s argument that the ordinance sought to deal with the generation of solid waste.[22]

While Laredo awaited a ruling from the Texas Supreme Court, Stephanie Grissom of Texas Tech Law Review pointed out a conflict within the state law itself: the Texas Constitution grants local power, while statutes like the Solid Waste Disposal Act take it away.[23]  Grissom surmised that Texas should enact a power-granting statute specifically giving cities, towns, and counties legal leverage to enact local plastic bag bans.[24]

This seems optimistic compared to an assertion made by Professor Richard Briffault, et. al.  State legislatures, he reasoned, sometimes institute regulation that is not regulation at all but, rather, aims to de-regulate on a statewide basis.[25]  Briffault cited Laredo as an example of such de-regulatory preemption.[26]  Taking Briffault’s idea into account, section 361.0961 of the Texas Health and Safety Code then ironically serves as de-regulatory regulation enacted by the legislature.  If legislatures do act in this way, with the goal of de-regulation through regulation, then the legislature would never entertain Grissom’s suggestion of enacting a power-granting statute allowing localities to enact bans of bags, straws, or anything else.

This does not bode well for bans on plastic straws, as they must account for state statutes pertaining to waste disposal or anything that might connect to banning plastic straws.  Further, those who enact plastic straw bans must hope their state courts choose to analyze all pertinent state law to give the ban a fair shake.  Such a hope seems too optimistic when considering the possibility that legislatures currently enact regulation with the hidden purpose of de-regulation.[27]

The Solution

           Having reviewed the legal history of other conflicts between local and state law arising out of an environmental consciousness, the solution reveals itself: Let the sovereigns, states and the federal government, handle this.  Analogous issues discussed above reveal that state law trumps local law aimed at banning plastic straws.  The states and the federal government could help reduce plastic straws’ harm in one of two ways.

First, sovereigns could take matters into their own hands.  Proposed legislation at the state level to reduce waste from plastic straws already exists.  True, some of this amounts to mere gesturing, such as Illinois representatives’ proposed “No Straw November.”[28]  However, New York proposed a rule requiring restaurants to provide plastic straws to customers only upon request.[29]  This might function as a reasonable middle ground, showing that some state legislators mean to solve the problem, slowly but surely.  However, recall the idea of de-regulatory preemption set forth by Briffault et. al.[30]  If the solution lies within the state legislative process, then the solution only works insofar as state legislators actually intend to solve the problem.  If, as Briffault asserts, some state legislators regulate with the underlying purpose of de-regulating[31], then only state legislators convinced of the merits of plastic straw bans would help enact them.

Managing the issue at the national level also remains a possibility.  European Parliament recently voted overwhelmingly, 571 to 53, to ban single use plastics, including straws, by 2021.[32]  The Environmental Protection Agency (EPA) could follow suit.  The caveat with this solution lies with traditional state/federal preemption.  Federal law, intentionally or unintentionally, might pose a challenge to states seeking to enact plastic straw bans or regulation.  The underlying problem of local/state preemption would simply move up the ladder and become state/federal preemption.

Second, the power gap between states and localities could be bridged.  In order for the plastic bag ban cases to not function as fables warning against any attempt by localities to self-regulate their plastic straw use, state legislators must enact comprehensive, power-granting state laws described by Grissom in her article critiquing Laredo.[33]  Such laws would empower localities to enact their own bans on their own terms.[34]  However, legislators would need to maintain moderation within such laws if they enact them.  On the one hand, granting too much local power would not bode well.  Suppose, for example, that a rogue town annoyed by this entire prospect decided to use more plastic straws and discontinue recycling.  On the other hand, if the statute does not go far enough, the situation obviously would remain unchanged, leaving localities to contend with the likes of Texas’ Solid Waste Disposal Act inhibiting local bans.

Conclusion

This new controversy over plastic straw bans invokes the legal conversation of the conflict between state and local law.  It re-asserts that localities remain subordinate to states, lacking the sovereignty of states who can stand on their own two feet pitted against the federal government.[35]  More importantly, it shows the deficiencies of that situation when cities and towns wish to do better for their environments.  Cases involving plastic bag bans hint at how plastic straw bans might unfold.  Unfortunately, a different outcome seems unlikely insofar as local laws go.  Hence, sovereign states and the federal government could handle this issue more effectively.  The average person, though, might lament that localities wanting to progress remain held back from doing so in one way or another.  It does seem this discussion reveals how the law can sometimes stifle innovation rather than encourage it.

Regardless of the length and content of the legal conversation amongst scholars, somewhere a turtle still bleeds because of a plastic straw.  The scientific studies on harm done by plastic straws have, at the very least, merited an intense public conversation that legal scholars should get ahead of.  Regardless of notions of environmental integrity and societal direction, the law persists as it is and this topic remains a conundrum.  For both environmental advocates and lawyers who must contend with the messy situation of state/local conflicts; this sucks.

 

 

[1] Lindsey Ellefson, Disney is the latest company doing away with plastic straws, CNN, August 1, 2018 (Online).

[2] Hilary Brueck, The real reason why so many cities and businesses are banning plastic straws, Business Insider, Jul. 25, 2018 (Online); Ewan Palmer, Plastic Straw Ban: You Can be Sent to Jail for Breaking the New Law in this California City, Newsweek, July 26, 2018 (Online).

[3] Wisconsin Public Intervenor v. Mortier. 501 U.S. 597 (US. 6/21/91) at 598.

[4] Christy Brisette, Plastic straws aren’t just bad for the environment- they can be bad for your body. Washington Post, July 3, 2018 (Online). Citing non-profit pollution researchers Better Alternatives Now; Roland Geyer et. al, Production, use, and fate of all plastics ever made, Science Advances (Vol. 3), July 19, 2017.

[5] Roland Geyer et. al, Production, use, and fate of all plastics ever made, Science Advances (Vol. 3), July 19, 2017.

[6] Id.

[7] Laurent C.M. Lebreton, et. al., Evidence that the Great Pacific Garbage Patch is rapidly accumulating plastic, 8 Scientific Reports (2018).

[8] Id.

[9] Christy Brisette, Plastic straws aren’t just bad for the environment- they can be bad for your body. Washington Post, July 3, 2018 (Online).

[10] Id.

[11] Roger Harrabin, Should we burn or bury waste plastic?, BBC (February 20, 2018) https://www.bbc.com/news/science-environment-43120041.

[12] U.S. Const. art. VI, sec. 2.

[13] The New Preemption Reader: Legislation, Cases and Commentary on the Leading Challenge in Today’s State and Local Government Law. Richard Briffault, et. al., 2019. 1.

[14] The New Preemption Reader: Legislation, Cases and Commentary on the Leading Challenge in Today’s State and Local Government Law. Richard Briffault, et. al. 8. (2019).

[15] City of Laredo v. Laredo Merchant’s Ass’n. 550 S.W.3d 586, 61 Tex. 1567, 588.

[16] Id.

[17] Id. at 589.

[18] Tex. Health and Safety Code Sec. 361.0961(a)(1).

[19] Laredo, Tex. Code of Ordinances. Sec. 33-505.

[20] City of Laredo v. Laredo Merchant’s Ass’n. 550 S.W.3d 586, 61 Tex. 1567, 589.

[21] Id.

[22] Id. at 595.

[23] Stephanie Grissom, Urban Tumbleweed: An analysis of single-use plastic bag regulations and the battle over local control, 50 Tex. Tech L. Rev. 759, 779. Summer, 2018.

[24] Id. at 781.

[25] The New Preemption Reader: Legislation, Cases and Commentary on the Leading Challenge in Today’s State and Local Government Law. Richard Briffault, et. al. 11,12. (2019).

[26] Id. at 28.

[27] Id. at 11,12.

[28] 2017 Illinois House Resolution No. 1200.

[29] 2017 New York Assembly bill No. 9994.

[30] Briffault at 11,12.

[31] Id.

[32] Ceylan Yeginsu, European Parliament Approves Ban on Single-Use Plastics, New York Times, October 25, 2018.

[33] Grissom at 781.

[34] Id.

[35] U.S. Const. art. IV sec. 3. Implied by U.S. Const. amend. 10; Wisconsin Public Intervenor v. Mortier. 501 U.S. 597, (U.S. 6/21/91) at 598.

Categories: Regulation

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