ALBANY — The state’s ban on single-use plastic bags, which went into effect March 1, will be enforced after being tied up in litigation for six months.
Poly-Pak Industries Inc., Green Earth Food Corp., Green Earth Grocery Store, Francisco Marte, The Bodega and the Small Business Association filed a lawsuit Feb. 28 naming the state of New York, Gov. Andrew Cuomo, the state Department of Environmental Conservation and DEC Commissioner Basil Seggos as defendants.
Seggos described Supreme Court Justice Gerald Connolly’s Aug. 20 decision, which will allow enforcement of the ban to commence, as a victory.
“The court’s decision is a victory and a vindication of New York State’s efforts to end the scourge of single-use plastic bags and a direct rebuke to the plastic bag manufacturers who tried to stop our law,” Seggos said in a statement. “DEC encourages New Yorkers to transition to reusable bags whenever and wherever they shop and to use common-sense precautions to keep reusable bags clean.”
It is unclear when enforcement will begin.
“Per the most recent agreement between the parties in ongoing litigation, DEC will advise the parties and the court at least 30 days in advance of its intention to begin enforcing the Bag Waste Reduction Act or the Part 351 regulations. Such notice has not yet been provided,” according to the DEC’s website.
Poly-Pak and the other businesses in the lawsuit requested that the plastic bag ban be voided and found vague, unconstitutional and arbitrary.
“Petitioners’ claim that the Bag Reduction Act is unconstitutionally vague is without merit as petitioners have failed to demonstrate their burden of proving unconstitutionality beyond a reasonable doubt and as the Bag Reduction Act has a predominant public purpose and presumption of validity,” according to Connolly’s decision. “Petitions’ claim that the Bag Regulations are ultra vires and arbitrary is without merit as DEC has the statutory authority to promulgate such regulation and its determination was rational.”
One inconsistency pointed out in the arguments presented by both the plaintiffs and by environmental groups We ACT for Environmental Justice, Beyond Plastics and Clean and Healthy New York in their amicus brief was that the DEC’s regulations would actually force plastic manufacturers to make even thicker plastic bags.
The regulations make non-film plastic bags exempt. Non-film plastic bags are described as being greater than 10 mils in thickness, according to the regulations, which would require manufacturers to make even thicker plastic bags to be in compliance.
The regulations would cause companies such as Poly-Pak to produce “a product with a greater carbon footprint and no greater functional utility than the reusable plastic bags it already makes,” according to the petition.
In this respect, Connolly ruled the Bag Regulations made by the DEC contradict the corresponding Bag Reduction passed by the state Legislature.
“The Bag Regulations contradict the Bag Reduction Act to the extent that they create an additional exemption for certain ‘non-film plastic washable material’ from the Bag Reduction Act’s ban of any plastic carryout bags,” according to court papers.
The exemption for non-film plastic bags is invalid as a matter of law, Connolly said in his decision.
Connolly ordered the defendants in the case — the state of New York, Cuomo, DEC and Seggos — and their employees be restrained from enforcing the regulation that grants an exemption to non-film plastic bags.
The remaining claims in the lawsuit were dismissed.
“This is a slam-dunk victory for New York’s environment,” Former Regional EPA Administrator and Beyond Plastics founder Judith Enck said. “New Yorkers use a staggering number of plastic bags — 23 billion each year. It is terrific that New York’s plastic bag ban was upheld and that the court rejected the loophole that would have allowed for stores to hand out thicker plastic bags, almost defeating the original purpose of the law. Once fully implemented, New Yorkers will see less plastic bag litter in our communities, parks and waterways.”
The New York Public Interest Research Group was among the 122 environmental organizations to sign a letter to DEC in May, urging the agency to remember its plastic bag ban as the economy reopened.
“The decision on the Poly Pak case is a critical win for the fight against plastic bag pollution in New York,” Environmental Policy Director Elizabeth Moran said. “By the state’s own estimates, New Yorkers use 23 billion plastic bags annually, and by 2050 there will be more plastic by weight in the oceans than fish unless the tide of plastic pollution is halted. The court has made clear that it is in the state’s jurisdiction to limit plastic bags. Additionally, a portion of regulations that would’ve allowed for slightly thicker plastic bags to be freely given out was rightfully struck down. We are pleased that the Department of Environmental Conservation now plans to begin enforcing this important law.”
Riverkeeper Legislative Advocacy Manager Jeremy Cherson echoed similar remarks.
“It’s a really good decision,” Cherson said. “Riverkeeper and others had been arguing that the regulations were a little over the top in regards to prescribing thickness not included in the plain text of the legislation.”
The proposed 10 mil standard is about as thick as a credit card, Cherson said.
“It’s good that the judge closed the door on that,” he said.
Cherson hopes to see the state begin enforcement of the ban, he said.
“There was a pause in many stores due to the lawsuit and the COVID-19 pandemic,” he said. “There were questions at the outset about whether surface transmission was a risk. It has since been determined that there isn’t a high risk from reusable bags.”
Enforcement should begin immediately, Cherson said.
Environmental Advocates of New York Deputy Director Kate Kurera said she expects retailers to comply with the ban.
“New York has a law on the books that bans plastic bags today,” Kurera said. “The ruling released by the Supreme Court of New York does nothing to change that fact or change DEC’s ability to enforce the law. Our environment and our health have already benefited from New York’s leadership on banning plastic bags. We expect retailers to comply and the state will now enforce the law.”
In the midst of the pandemic and the litigation, many supermarket chains brought back plastic.
Hannaford Supermarkets is among the grocery store chains bringing back plastic bags temporarily, spokesman Eric Bloom said in April.
“We have temporarily reintroduced the use of plastic bags in our stores during this time,” Bloom said. “The 5-cent charge for plastic and paper bags has been suspended.”
Hannaford has a policy that shoppers bringing reusable bags must bag their own groceries due to the pandemic, according to the company website.
Price Chopper brought back plastic bags in late March, Vice President Mona Golub said, but discontinued their use again Aug. 1.
“We made the decision to bring plastic bags back into our New York stores at the end of March, based on three factors: the paper bag supply chain was tightening, the conversion to reusables was still in a state of transition and our customers were expressing a higher comfort level with disposable bags in this time of elevated sanitation protocols,” Golub said.
Tops Markets is another chain that temporarily brought back plastic.
“Tops is temporarily not enforcing [the ban] in order to help with sanitation concerns surrounding reusable bags and COVID-19,” Tops Markets Public and Media Relations Manager Kathy Sautter said in April. “If a customer brings in a reusable bag and does not bag their own groceries themselves, the cashier will then bag their groceries in either a plastic or paper bag. There will be no fee for plastic bags however Tops will still be charging a fee for paper bags.”
Tops discontinued its use of plastic bags again on July 6.
As experts continue to gain a better understanding of the coronavirus, it is not believed that touching objects is a primary form of transmission, according to the Centers for Disease Control and Prevention.
“The primary and most important mode of transmission for COVID-19 is through close contact from person to person,” according to the CDC. “Based on data from lab studies on COVID-19 and what we know about similar respiratory diseases, it may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose or possibly their eyes, but this isn’t thought to be the main way the virus spreads.”
Cherson hopes that with enforcement of the ban in full swing, Riverkeeper volunteers will find less plastic along the shores of the Hudson River during its annual Riverkeeper Sweep on Oct. 17, he said.
For more information about the Sweep visit riverkeeper.org/sweep.