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Nov 07, 2024

Bag Ban Faced Legal Hurdles On Way To Ballot, More Likely If It Passes

Downtown Bozeman, Montana A proposed ordinance banning plastic bags and styrofoam is on the ballot this week in Montana’s fourth largest town, Bozeman. Proponents of the proposal, referred to as the

Downtown Bozeman, Montana

A proposed ordinance banning plastic bags and styrofoam is on the ballot this week in Montana’s fourth largest town, Bozeman. Proponents of the proposal, referred to as the Bozeman Plastics Ordinance (BPO), overcame legal challenges during the ballot qualification process. Should voters approve the BPO on Tuesday, however, that is unlikely to be the final word on the matter. That’s because the Bozeman bag ban is all but certain to be subject to new lawsuits if it passes.

To date, 12 states have enacted laws prohibiting or taxing plastic bags, but hundreds of cities and towns have also done so. If Bozeman residents approve the proposed ordinance this week, theirs will be the only locality in Montana to impose a prohibition on plastic shopping bags and styrofoam.

BPO proponents tout it as a litter mitigation measure that will be beneficial to the environment. Opponents, however, claim it would do to the opposite.

“Studies have shown that alternatives to single-use plastics can be even worse for the environment, contributing more emissions that worsen climate change or even containing more 'forever chemicals,” says Kendall Cotton, CEO of the Frontier Institute, a free market think tank based in Montana. “This push to ban single-use plastics is the latest example of nonsensical hypocrisy from radical environmental activist groups in Montana who appear to care more about pushing a narrow ideological agenda than actually saving the environment.”

Setting aside the debate over whether the proposed plastics and styrofoam ban would be good or bad for the environment, there are legal concerns about the BPO that will likely lead to it being challenged in court. While the outcome of a prospective legal challenge is uncertain, what is guaranteed is that local taxpayers will be forced to foot the bill for legal defense costs if the plastics and styrofoam prohibition is approved by Bozeman voters.

The proposed ordinance, if approved, would likely be challenged on account of its broad and vague language. In addition to banning the distribution of plastic shopping bags at checkout, the proposed Bozeman ordinance also stipulates that retailers are also not allowed to “otherwise make plastic bags available to customers.”

Critics of the BPO contend that a literal interpretation of the proposed ordinance, because of the broad and vague wording of the law, would prohibit the sale of many other bags that contain plastic, such as backpacks and handbags. In response to such concerns, Bozeman bag ban backers say they’ll work with local regulators to implement the BPO with exemptions that address such concerns.

A legal analysis of the BPO, conducted by the firm Nelson Mullins, found that many other items could be banned under the vague language of the law, including sleeping bags, hiking bags, hockey bags, and school lunch containers. Nelson Mullins’ analysis also concluded the BPO’s styrofoam ban will also present challenges to local manufacturers and retailers who sell appliances and home goods packaged in styrofoam for protection. In response, proponents of the Bozeman plastics and styrofoam ban contend that such concerns could be addressed by municipal regulators tasked with implementing the law.

Daniel Carty a lawyer with the Bozeman Plastics Ordinance Working Group, which supports the BPO, contends that the proposed ordinance, if approved by voters, “will not preclude the sale of such handbags or backpacks unless a retail sales establishment grossly misinterprets the spirit and intent of the language,” adding that “the City of Bozeman (City) will be required to implement the ordinance and ensure compliance with the ordinance.”

Carty adds that “it is highly unlikely the City would interpret the phrase ‘…or otherwise make plastic bags available to customers’ in a way that would preclude retail sales establishments from selling handbags.” It’s not just handbag sales, however, that critics of the ordinance’s broad language are concerned about.

Bozeman bag ban backers say they’ll work with local regulators to implement the prohibition with exemptions that are not included in the law itself. But a similar move by regulators at the New York Department of of Conservation is what led to the Empire State’s bag ban being struck down by the New York Supreme Court.

“The BPO Working Group is prepared to assist the City with developing BPO implementation and compliance language that reflects the spirit and intent of the phrase,” said Carty. Yet the New York Supreme Court struck down its plastic bag ban because Albany regulators also tried to implement their bag ban based on its “spirit and intent.” New York’s highest court deemed the actual language of the law to be of greater importance than its “spirit and intent.”

“Reusable bags may not be distributed if they contain plastic of any kind, barring some further action by the Legislature,” acting New York Supreme Court Justice Gerard Connolly noted in his ruling striking down New York’s plastic bag ban. Connolly also ordered the state to cover plaintiffs’ court costs on account of the confusion sowed by regulators’ incorrect instructions.

Bozeman bag ban proponents claim the prohibition would come at no cost to taxpayers. Some proponents of the measure, however, concede that claim is imprecise at best, false at worst.

As Carty acknowledged in response to questions from this author, the proposed Bozeman ordinance, if enacted, would indeed come with new costs for local government related to implementation and ongoing administration. In defense of those making the “no cost” argument, Carty contends that, to his knowledge “the City has no plans to levy a tax on or charge a fee to taxpayers or anyone else for BPO implementation and compliance.”

Criticism about broad, vague, or imprecise statutory language isn’t exclusive to progressive-led proposals. The citizenship voting ballot measure appearing on North Carolina’s ballot, for example, has also come under fire for its imprecise wording. Bozeman’s proposed bag and styrofoam ban encountered legal challenges on its way to the ballot. If the BPO passes on November 5 its proponents can expect new legal challenges that seek to overturn the measure, with taxpayers on the hook for legal defense costs.