Bans on bans block local progress to reduce plastic pollution

How preemption law is being used to blunt grassroots efforts

Adair Andre
Mar 15, 2019 · 4 min read
Photo: Marco Verch via Flickr CC BY 2.0

Sometimes the rule of law means cities and counties can’t speak for themselves. Consider this: The Minneapolis City Council voted 10 to 3 in 2016 to implement a ban on plastic bags, because it recognized the toll this single-use product has on our environment and recycling infrastructure. However, in 2017, a day before the ban was to go into effect, the Minnesota state legislature imposed what is known as a “preemption law” for plastic bags. A preemption law allows a higher level of government to pass a law that overrides local level efforts.

Preemption laws can be used for good, such as when the U.S. government introduced the Clean Water Act in 1972. In that instance, it set a robust baseline national standard, preempting anything states previously had on the books regarding water quality. However, when it comes to reducing plastic waste, this legal tactic is being used as a weapon. Minnesota is a perfect example. There, the preemption legislation was introduced at the State House with the clear purpose of preventing cities and counties from making laws restricting plastics. This shift of power to state lawmakers not only led to the invalidation of the Minneapolis ban, but also hamstrung local authorities in other jurisdictions who otherwise would have enacted bans or fees on plastics.

Sadly, Minnesota is not alone. Already, twelve states are shackled with some form of preemption, restricting local control to reduce plastic. Meanwhile, six additional states have faced recent threats of preemption. These numbers beg the question: Why has this form of law become so popular? Well, as we saw with Minneapolis, it is an effective tactic to squash grassroots efforts to pass local bans on straws, bags and and other pernicious plastics.

Making matter worse, this push for preemption frequently comes from a well-funded, coordinated group of outsiders. This opposition, known as the American Progressive Bag Alliance, lobbies across the country for state plastics preemption. They bypass local communities, effectively telling them they don’t know what’s best for their community.

Despite its benign sounding name, the American Progressive Bag Alliance is made up of powerful plastics industry leaders. They believe that “American-made plastic products [are] the smartest, most environmentally friendly choice at the checkout counter for both retailers and consumers.”

As part of their argument, they say single-use paper and reusable bags present their own environmental impacts. There is some truth in that statement, but the Bag Alliance isn’t painting the whole picture. The problem with their assertion is it only considers a small portion of the life-cycle of plastic bags.

The group lives in a fantasy world where every plastic bag is recycled or reused infinitely, which is incredibly difficult and unlikely. The Bag Alliance also states that “plastic bags are 100% recyclable,” which is hypothetically true. But in reality, most single-stream facilities cannot recycle them; the thin bags often get stuck and cause malfunctioning in machinery. These plastic bags will more likely end up in landfills or the environment, spending centuries breaking down and releasing toxins, or in incinerators, immediately causing noxious pollutants

To bolster their position, the Bag Alliance reasons that outlawing bag bans and taxes is necessary to protect plastics manufacturers, retailers who buy their bags and other businesses. This just isn’t true. In regards to plastics manufacturers: there is already enough plastic in our world. Instead of focusing on producing more, they should pivot to recovery and recycling the plastics which already exist, and then turn those materials into products intended for multiple uses.

As for retailers, the Bag Alliance states on their website that “bans can increase costs, making it hard for businesses to comply.” Though this quote from their site tells us little in terms of how a ban would increase costs, one common rationale against local bans is they make it difficult for businesses to keep track of the varying city laws within a state. While this complication may exist, the benefits to businesses from these bans far outweigh the costs. In reality, most bag laws actually support retail businesses with a 5- to 10-cent fee on paper bags that typically goes directly to the retailer. The plain fact is bag bans are practical, affordable and an important first step to shifting the culture of disposability.

While these laws may just seem like an annoying roadblock, preemption is actually a huge barrier because it cuts off any hope for local action. This is a tremendous impediment because grassroots efforts are such a wellspring for not only reducing the plastics polluting our environments, but for also inspiring state — and sometimes national — action on the issue. If cities aren’t left to be laboratories for change, we’re cutting off an important avenue to make our country healthier and less polluted.

With gridlock at the national level, and only two states having statewide plastic bag bans, we need flexibility for local governments to make the decisions that move our society forward. These preemption laws are squashing the grassroots momentum, which could put America on par with the rest of the world on plastic — with at least 23 countries having national bans on plastic bags.

To this end, an important focus for the single-use plastic bag ban movement must be to restore local control. Already, Florida and Minnesota have introduced laws that would amend or repeal the preemption laws, which would allow more local say on plastic bags and other single-use plastic items. These states must be a tipping point for ending preemption and allowing local efforts to compete fairly with the likes of the American Progressive Bag Alliance. Take away these ban on bans and the chances for improving our environment will be greatly enhanced.

U.S. PIRG

U.S. PIRG

U.S. PIRG is a consumer group that stands up to powerful interests whenever they threaten our health and safety, our financial security, or our right to fully participate in our democratic society. Part of the Public Interest Network. https://uspirg.org/

Adair Andre

Written by

Advocate with Environment Colorado. Former Zero Waste Fellow with U.S. PIRG

U.S. PIRG

U.S. PIRG is a consumer group that stands up to powerful interests whenever they threaten our health and safety, our financial security, or our right to fully participate in our democratic society. Part of the Public Interest Network. https://uspirg.org/