Victory for Local Government’s Right to Regulate the Use of Single-use Plastic Bags

(Feb 07, 2022) Philadelphia, PA For those of you who are paying attention to the plastic bag “ban” in Philadelphia, you may be confused as to where it stands; if so, that’s understandable.

Clean Air Council (the “Council”) began advocating  for a reduction in single-use plastic bags in Philadelphia well over a decade ago. Environmental groups and city residents, including the vast majority of City Council, understand that we must start to reduce our use of single-use items and have pushed for this for so long because it’s the right thing to do.

The week after Philadelphia City Councilmember Squilla introduced  legislation to ban single-use plastic bags and put a fee on all other single-use bags in Philadelphia, a small group of Republican state legislators introduced legislation to usurp the authority of every municipality in the state to adopt such an ordinance. This group of legislators, who do not live or work in Philadelphia, decided that they knew better than those of us who do live, work, and recreate in the City of Philadelphia. The preemption legislation was inserted into a “must-pass” fiscal bill and became law. The new law blocked all municipalities in Pennsylvania, including Philadelphia, from enacting or enforcing any laws that would affect single-use plastic or polystyrene (Styrofoam).

This first preemption law was put in place for one year and required that two state agencies  study the economic impact of these types of prohibitions on the use of single-use plastic bags. Unsurprisingly, and even using industry-funded data, the studies showed that there was a benefit to adding a fee for single-use bags, and “the report [ ] concluded that a fee on single-use bags would save consumers $82 million a year while taking nearly 2 million bags out of circulation.”  The Council believes these numbers greatly underestimate both the benefits to consumers and the number of bags likely to be removed from “circulation.” Additionally, the calculated cost to consumers does not include the “cost to taxpayers” in cleanup costs and other real costs to communities from the damage and litter single-use bags account for.

The Pennsylvania Legislature, even before the study they ordered was complete, renewed the preemption, this time including language that banned the enforcement of any existing local legislation. The Council joined with Philadelphia, Pittsburgh, West Chester, Narberth, and Lower Merion and filed a lawsuit against the state to protect the authority of municipalities to enact and enforce laws to protect their residents.

These local governments and the Council argued that the preemption law was unconstitutional in the way it was passed and that it violated Pennsylvanian’s right to a clean environment as guaranteed by the state’s Environmental Rights Amendment. While the litigation was ongoing, Philadelphia put a pause on its enforcement of the already passed single-use bag law and other municipalities did as well. Litigation almost always goes very slowly, and ultimately, the preemption expired and was not reinserted into the current fiscal code. We believe because of the lawsuit. The litigation was therefore withdrawn and the preemption is  no longer law.

As of right now, it is unlawful for any retailer in Philadelphia to provide a single-use plastic bag to a customer at the point of checkout or delivery. This is a huge victory.

The Council is currently working with a coalition of other groups to amend the existing Philadelphia law to include a fee on all other bags, which is the most effective way to reduce single-use bags. The Council is also working with other municipalities throughout Pennsylvania to introduce various single-use legislation. 

For more information, contact Logan Welde, Staff Attorney, lwelde@cleanair.org.