AG: Local bans on plastic bags illegal

Arizona Attorney General Mark Brnovich talks with reporters.

Howard Fischer/Capitol Media Services

Arizona Attorney General Mark Brnovich talks with reporters.

PHOENIX – Saying state law trumps local control, Attorney General Mark Brnovich ruled Tuesday that a Bisbee ordinance banning plastic bags is illegal.

Brnovich told Capitol Media Services that city attorney Britt Hanson presented several “compelling reasons’’ why the community should be able to outlaw plastic bags and require retailers to charge a nickel for paper ones. And the attorney general said he understands the concerns about dealing with flyaway trash.

But he said all that is legally irrelevant.

The only thing that matters, Brnovich said, is that the Arizona Legislature voted last year to prohibit local governments from regulating “auxiliary containers.’’ That means no fees or prohibitions on anything ranging from bottles and cans to bags.

And the attorney general said, the 2016 law spells out that lawmakers believe such issues are a matter of statewide concern and not subject to local regulations. That, Brnovich said, overrules the city’s contention that the ban is strictly a local issue.

Brnovich, using the power granted to him under a separate 2016 law, gave the city 30 days to rescind the ordinance. And if the council refuses, the attorney general said he will direct the state treasurer to begin withholding Bisbee’s share of state aid.

The more likely prospect is that the city will file suit, asking a judge to block the cash loss until there is a final ruling by a court on whether the ordinance really does conflict with the preemption.

Among the arguments will be that Bisbee is a “charter city’’ with state constitutional powers to enact laws on strictly local matters. And Hanson contends that how the city deals with trash is strictly a local concern.

Bisbee Mayor Dave Smith said the council will discuss Brnovich’s ruling – and what to do next – at its regularly scheduled Nov. 7 meeting, if not earlier given that 30-day deadline.

But the odds of the city winning a legal battle may not be good.

Earlier this year the Arizona Supreme Court looked at a Tucson ordinance that required police to destroy weapons that are seized or surrendered. Officials from Tucson argued that it, too, is a charter city and that what happens to guns is none of the state’s business.

But the justices unanimously noted that the Legislature had approved various laws declaring the regulation of guns to be a “matter of statewide concern.’’ And that, they concluded, overrode the city ordinance.

More to the point, the justices strongly suggested they believe that the right of charter cities to ignore state laws applies only in two areas: how and when cities conduct local elections and how they decide to sell or otherwise dispose of land.

And the question of bags clearly falls outside both areas.

The ordinance at issue prohibits retailers from providing free single-use plastic bags to customers; paper bags from recycled material can be provided with retailers required to charge a nickel.

The result, Hanson said said, has been a cleaner community and lower costs for retailers.

Brnovich said there’s nothing wrong with that goal.

“I am very, very sympathetic to what the city of Bisbee is trying to do,’’ he told Capitol Media Services.

“I think it’s laudable,’’ Brnovich continued. “In fact, in their response to us there was literally dozens and dozens of local businesses in Bisbee that liked this ban.’’

But he said none of that overrules the state law barring cities from enacting such rules.

Still, Brnovich said, there are legal options.

“If the businesses in Bisbee and the folks in Bisbee want to voluntarily not use plastic bags, no one is stopping them from doing it,’’ he said. And nothing in state law requires businesses to offer paper or plastic bags – or any bags at all for that matter – to their customers.

“I think that’s the key,’’ Brnovich said.

None of this would be an issue if the Legislature had not stepped in last year to preempt local regulation of auxiliary containers – and specifically to overrule the Bisbee ordinance which has been in place since 2013.

“We’re protecting the individual business from being forced to do something,’’ argued Rep. Warren Petersen, R-Gilbert, the sponsor of the legislation.

But there was also the fear that other cities, seeing what happened in Bisbee, might decide to strike out on their own. That got the attention of Tim McCabe, president of the Arizona Food Marketing Alliance which represents grocery stores and supermarkets.

“What if, for example, Phoenix banned 32-ounce fountain cups, Mesa put a deposit on water bottles, Peoria put a fee on all bags and Chandler banned plastic bags?’’ he argued to lawmakers. And McCabe said such local control would create situations in urban areas where shoppers who want free bags could simply walk across the street to another market in another city.

The preemption also had support from the Arizona Restaurant Association. Its lobbyist said her establishments do not want limits on take-out bags, which often carry the establishment’s logo and become part of their marketing.