Industry Fights Bag Bans, Fees in Texas

Published May 25, 2015

A coalition of plastic bag manufacturers and recyclers has filed a lawsuit challenging the city of Dallas’s plastic bag fee ordinance levying a 5-cent “environmental fee” on single-use shopping bags.

The lawsuit filed by manufacturers, including Hilex Poly, Superbag Operating, Ltd., the Inteplast Group, Ltd. and Advance Polybag, Inc., claims the city’s single-use bag fee, which took effect in January, violates a decades-old state law protecting consumers and preventing excessive municipal regulation. 

In support of their challenge the lawsuit cites provisions of the Health and Safety Code, stating: 

“A local government or other political subdivision may not adopt an ordinance, rule or regulation to: prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law; [or] assess a fee or deposit on the sale or use of a container or package.”

Dallas seemed aware of this law but went forward with its plastic bag fee anyway. 

In August, four months before Dallas’ plastic bag fee took effect, then-Attorney General Greg Abbott issued a public advisory opinion finding municipal ordinances restricting or prohibiting single-use plastic bags had probably violated state law. According to Abbott’s opinion, “Neither a home-rule city nor a general-law city may adopt an ordinance that is inconsistent with the Texas Constitution or Texas statutes.” 

Other Cities Ordinances at Risk

Dallas is not the only city with ordinances taxing or even banning stores from offering plastic bags to their customers. Austin has banned stores from offering what are commonly but erroneously referred to a sigle use plastic bags, while Brownsville has its own fee on them. Twelve other Texas cities are considering placing restrictions or fees on grocery and retail stores offering plastic bags to customers at stores to carry their groceries or other items. 

Should the bag manufacturers and recyclers prevail, those cities ordinances would be at risk. 

Hilex’s Senior Vice-President of Sustainability, Mark Daniels, offered a public statement in defense of their company’s challenge to the city law. “The plastic bag manufacturing and recycling industry has invested millions in new technologies and education programs to enhance and promote the sustainability of this 100 percent recyclable product,” said Daniels. “Bag bans, taxes or fees do not have a meaningful impact on reducing litter or waste, and, in the state of Texas, the law is clear that a city cannot ban or impose a fee on plastic bags. Dallas is in direct violation of Texas law.”

H. Sterling Burnett ([email protected]) is managing editor of Environment & Climate News.